R. Sridher vs T.K. Rajendra Sha

K.N. Basha, J.—The complainant, who is the appellant in this case, has come forward with this appeal challenging the order of acquittal

passed by the learned V Additional Sessions Judge, Chennai, in C.A. No. 91 of 2004 dated 22.09.2004 reversing the order of conviction passed

by the learned IX Metropolitan Magistrate, Saidapet, Chennai, in C.C. No. 3716 of 2003 dated 17.02.2004 convicting the accused u/s 138 of

the Negotiable Instruments Act (hereinafter referred to as ""the Act"") and sentencing him to undergo two years Rigorous Imprisonment and to pay a

compensation of Rs. 42,00,000/-, which is twice to the cheque amount of Rs. 21,00,000/-, in default, to undergo three months Simple

Imprisonment. There are totally two accused and the learned trial Magistrate acquitted A-2 from the charges levelled against him.

(a) The case of the complainant is that the first accused and the second accused in this case are the father and son and both of them jointly

approached the complainant in the year 2002 and borrowed total sum of Rs. 21,00,000/- on various dates till July 2002 for their business

purpose. It is the further case of the complainant that there was also an agreement, Ex. P. 1, entered into between the complainant and A-l

admitting the liability and also in addition to that A-2 executed a promissory note, Ex.P.2, in favour of the complainant. It is the further case of the

complainant that in order to settle the above said amount pending to him, A-1 issued a cheque, Ex. P. 3, dated 11.11.2002 for an amount of Rs.

21,00,000/- drawn on Lakshmi Vilas Bank Limited, Triplicate Branch, in favour of the complainant, who has been examined himself as P.W. 1.

(b) It is further stated by the complainant that at the time of issuing the cheque, Ex. P. 1, the accused requested the complainant to present the

same after getting instructions from him as he has to make the sufficient funds to honour the cheque. It is further stated by the complainant that as

per the instruction of the accused, he has deposited the cheque in his Bankers viz., Tamil Nadu State Apex Co-operative Bank Limited, Triplicane

on 21.03.2003 and the same was dishonoured with an endorsement ""Funds Insufficient."", as per the Intimation of the Bank, Ex. P. 4. Ex. P. 5 is

the debit advice. Thereafter, the complainant sent a registered legal notice, Ex. P. 6, through Courier Post to both the accused calling upon them to

make the payment towards the dishonoured cheque, Ex. P. 3, within 15 days from the date of receipt of the notice.

(c) It is the further case of the complainant that A-l and A-2 deliberately evaded to receive the notice and hence, the notice sent by the complainant

returned with a courier endorsement ""refused"" on 27.03.2003. The complainant has also marked Exs. P. 7 and 8, the returned Courier post covers

with the receipts. The complainant, in order to prove his case, has also filed Ex. P. 9, his Bank Statement, and Ex. P. 10, copy of the bank account

of the accused. The complainant has also stated that in spite of knowing fully well about the dishonour of the cheque and after deliberately refusing

to receive the notice, Ex. P. 6, till date A-1 and A-2 have not settled the amount towards the dishonoured cheque, Ex.P.3, even after the expiry of

the stipulated time contemplated u/s 138 of the Act and as such A-1 and A-2 have committed the offence u/s 138 of the Act.

The complainant in order to prove his case examined himself as P.W. 1 and examined P.W. 2 who is the Cashier of. the Lakshmi Vilas Bank

Limited, Triplicane, to speak about the return of cheque on the ground of ""Insufficient Funds"". The complainant also marked Exs. P. 1 to P. 10.

While the accused were questioned u/s 313 of Cr.P.C. in respect of incriminating materials appearing against them through the evidence of the

complainant, P.W. 1, as well as Bank Cashier, Lakshmi Vilas Bank Limited, P.W. 2, and also through Exs. P. 1 to P. 10, the accused have denied

their complicity and submitted that they have been falsely implicated in this case. The accused have not chosen to examine any witness on their side

and also not produced any documents in support of their defence.

Learned Magistrate on consideration of the evidence adduced by the complainant as well as the contentions of both sides has come to the

conclusion, that the complainant has proved his case for the offence u/s 138 of the Act and thereby convicted the accused, as stated above.

The accused challenging the order of conviction passed by the learned Magistrate preferred appeal in C.A. No. 91 of 2004 and the same was

allowed by the learned V Additional Sessions Judge, Chennai, by the judgment dated 22.09.2004 reversing the order of conviction passed by the

learned trial Magistrate and acquitted the accused. Being aggrieved against the order of acquittal passed by the learned lower Appellate Court

Judge, the complainant has come forward with this appeal.

Mr. Abudu Kumar Rajarathinam, learned Counsel appearing for the complainant/appellant submitted that the complainant has proved his case

establishing the offence u/s 138 of the Act by adducing oral evidence as well as marking not only the disputed cheque, Ex. P.3, but also the other

documents viz., the Bank Memo, Ex. P.4, and Debit Advice, Ex. P.5, in respect of the dishonoured cheque and Legal notice, Ex. P.6, courier post

returned covers, Exs. P.7 and 8, for sending the notice to the proper and correct address through courier post including the courier receipts and

also produced the copy of the accounts, Exs. P.9 and 10, in respect of the account of the complainant as well as the accused in their respective

banks. Learned Counsel for the appellant further submitted that the complainant followed the mandatory provisions contemplated u/s 138 of the

Act and the'' case was also filed within the time stipulated under the Act and there is absolutely no illegality or irregularity in the initiation of

proceedings u/s 138 of the Act.

Learned Counsel for the appellant further contended that the learned Lower Appellate Court Judge has committed a serious error of law by

reversing the well versed conviction passed by the learned Trial Magistrate. It is also pointed out by the learned Counsel for the appellant that the

only ground on which the learned Lower Appellate Court Judge reversed the well settled order of conviction is that the complainant has not

produced the courier post receipts along with the returned covers. It is pointed out by the learned Counsel for the appellant that the finding of the

learned Lower Appellate Court Judge is factually incorrect and there is absolutely no basis for such finding as the complainant marked Exs. P.7

and 8, viz., courier post returned covers and also the receipts for the same. It is further pointed out by the learned Counsel for the appellant that

even the said courier posts were addressed to the accused mentioning the correct address and the accused also not disputed this fact viz., in

respect of the address mentioned in the covers. It is further submitted by the learned Counsel for the appellant that the learned Trial A Magistrate

has categorically held that Ex. P. 7 and 8, covers, were sent through Chennai Courier Services and along with the returned covers receipts were

also enclosed under Nos. 4280 and 4279 and it is also noted by the learned Magistrate that there is an endorsement to that effect ""party refused"".

Therefore in view of the same, it is very clear that the learned Trial Magistrate has simply brushed aside and overlooked such an important material

produced by the complainant.

Learned Counsel for the appellant further contended that the finding of the learned lower appellate Court Judge in respect of sending the notice,

Ex. P.6 and also producing the returned covers by Courier posts along with the receipts, Exs. P.7 and 8 are also not based on any materials

available on record and on the other hand such findings are contrary to the materials available on record. It is also pointed out by the learned

Counsel for the appellant that while rejecting Exs.P.7 and 8, the learned lower appellate court Judge has stated that the complainant has stated

during, his examination that he was not aware about the person who wrote the endorsement and such finding is most unreliable in view of the fact

that the complainant has nothing to do and the only dispute is as to who despatched the same through courier post. It is also pointed out by the

learned Counsel for the appellant that the further finding of the learned lower appellate court Judge is that the learned Judge relied on some

answers given by the complainant/P.W. 1 to the effect that he was not aware as to how his advocate sent the notice and even this finding is also

unreasonable as the person in the position of the complainant has to only direct the advocate and it is only the advocate who has to decide in what

mode he has to sent the notice to the concerned person viz., the accused.

The learned Counsel, for the appellant lastly submitted that in view of the undisputed fact that the courier posts were despatched to the correct

address of the addressee as the accused has not disputed the address, it has to be presumed that the notice is deemed to have been served on the

accused unless the accused proves that it was not really served and the learned Counsel for the appellant also placed reliance on the decision of

the Hon''ble Supreme Court of India in V. Raja Kumari Vs. P. Subbarama Naidu and Another, .

Per contra, Mr. M. Ranjith Kumar, learned Counsel appearing for the respondent contended that the learned Trial Magistrate has given

categorical reasons while reversing the order of conviction passed by the learned Trial Magistrate. Learned counsel for the respondent further

contended that the complainant P.W. 1 has not able to state during his cross-examination as to how his advocate has sent the notice and also it is

stated by P.W. 1, the complainant, that he was not aware whether the receipts for sending the courier post are produced before the Court or not

and as such it is submitted by the learned Counsel for the respondent that there is absolutely no illegality or irregularity in the judgment of acquittal

passed by the learned Appellate Court. It is further submitted by the learned Counsel for the respondent/accused that for interfering in the

judgment of acquittal there should be some compelling reasons and only in the event of the learned Judge misread the evidence or overlook the

materials available on record, this Court is entitled to interfere in the order of acquittal and in this case the learned lower appellate Court Judge has

considered the evidence of P.W. 1 and given valid reasons for acquittal.

I have given my careful consideration to the rival contentions put forward by either side and perused the entire materials available on record

including the impugned judgment of acquittal.

A perusal of the records and also the submissions made by both sides show that the learned Magistrate convicted the accused and the same

was reversed by the learned lower Appellate Court Judge. The undisputed fact remains that one and only ground on which the order of conviction

is reversed by the learned lower Appellate Court Judge is that P.W. 1 has not produced the Courier post receipts to prove that he has sent the

legal notice, Ex. P.6, through courier post and the same was received by the accused/respondent in this case. The learned lower appellate Court

Judge has given specific finding to the effect that the accused has not produced the courier post receipts, but the perusal of the order of the learned

Trial Magistrate clearly shows that the learned Trial Magistrate has perused Exs. P.7 and P. 8, the courier post covers along with the receipts and

the learned Trial Magistrate also specifically mentioned the numbers of the receipts viz., 4280 and 4279. This Court also verified the original

records and on verification it is noted that along with Exs. P.7 and P.8, covers, receipts were also enclosed and therefore it is crystal clear that the

finding of the learned Appellate Judge is factually incorrect and the learned lower appellate Court Judge has not only brushed aside the materials

available on record but also overlooked the documents which are very much available in Exs. P.7 and 8 resulted in grave miscarriage of justice to

the complainant in this case.

It is further relevant to state in this matter that admittedly the accused is not at all disputed the address to which the couriers covers were

despatched and as such the courier posts were sent to the correct address of the respondent/accused and that being the position it is to be

presumed that the notice is deemed to have been served on the accused. Learned Counsel for the appellant has also rightly placed reliance on the

decision of the Hon''ble Supreme Court of India in V. Raja Kumari Vs. P. Subbarama Naidu and Another, .

In that decision, it has held by the Ho Supreme Court of India that,

...Section 27 of the General Clauses Act, 1897 will be useful. The Section reads thus:

Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorises or requires any

document to be rserved by post, whether the expression ""serve"" or either of the expressions ""give"" or ''send'' or any other expression is used, then,

unless a different intention appears, the service shall be deemed to be effected by properly addressing, preparing and posting by registered post, a

letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the

ordinary course of post.

No doubt Section 138 of the Act does not required that the notice should be given only by ''post''. Nonetheless the principle incorporated in

Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address

written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not

responsible for such non-service.

In the very same decision, the Apex Court also referred its earlier decision as follows:

It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him vide Harcharan Singh Vs.

Smt. Shivrani and Others, and Jagdish Singh Vs. Natthu Singh, .

Therefore, the principle of law laid down by the Hon''ble Apex Court is squarely applicable to the facts of the instant case as in this case also

the appellant/complainant has despatched the statutory notice contemplated u/s 138(b) of the Act by courier post and the same was also served

and the accused not disputed the address and further the courier service receipts were very much available on record as Exs.P.7 and P.8 and the

learned lower Appellate Court Judge has simply brushed aside and overlooked those materials and has given a wrong finding warranting

interference of this Court in the order of acquittal. Therefore, this Court is constrained to set aside the order of acquittal passed by the learned V

Additional Sessions Judge, Chennai, in C.A. No. 91 of 2004 dated 22.09.2004 reversing the order of conviction passed by the learned IX

Metropolitan Magistrate, Saidapet, Chennai, in C.C. No. 3716 of 2003 dated 17.02.2004. Accordingly, the respondent/accused is convicted u/s

138 of the Act and in respect of the sentence, it is submitted by the learned Counsel for the respondent that the accused is aged about 77 years

and due to his old age, he is not in a position to continue his business and he is also not running any business as on date. It is further submitted by

the learned Counsel for the respondent that in view of his old age and other circumstances, the sentence of imprisonment may not be necessary as

leniency should be shown to the accused/respondent.

Therefore, post on 02.08.20J06 at 2.30 p.m. for deciding the question of sentence.

This matter has been periodically adjourned right from 27.07.2006 in respect of imposing the sentence on the accused and the accused also

appeared before this Court on three-four occasions and represented that he would take necessary steps to settle the matter. But in spite of his

submissions made before this Court in person, till date no steps were taken by the accused/respondent and this matter was kept pending for a long

time nearly for a period of a year considering the age of the accused with a view to give him effective opportunity to take steps to solve the matter

amicably. The learned Counsel for the respondent even today represented before this Court that he has already informed the accused over the

phone on several times and also sent a letter, but the accused/respondent stating that he would meet him in person but he has failed to do so. It is

further submitted by the learned Counsel for the respondent that he has sent a registered post requesting the accused/respondent to come for giving

instructions in respect of question of sentence and the learned Counsel for the respondent produced the acknowledgment receipt in respect of

sending the registered post to the accused/respondent. It is also submitted by the learned Counsel for the respondent that even today the accused,

though contacted him over the phone and informed him that he would take necessary steps to settle the matter, has not contacted him so far. In

view of the above said sequence of events, this court is constrained to pass an order in respect of question of sentence today, as already the

accused/respondent was given a very long time and sufficient opportunity.

Before awarding the sentence in this case, this Court has to take note of the old age of the respondent/accused i.e. 77 years. The respondent

has faced the trial in respect of two cases and underwent the ordeal and the learned trial Magistrate found him guilty in respect of both the cases

but only on appeal, the learned lower appellate court judge set aside the conviction and sentence and acquitted him mainly on technical ground and

such ground is also proved to be wrong, as stated above.

As already stated, the respondent is admittedly a person of old age and further when he appeared before this Court it appears that he is not

keeping good health and as such this Court is of the considered view that imposing a sentence of till rising of the Court as well as directing the

respondent/accused to pay some reasonable amount as compensation would meet the ends of justice.

The cheque amount involved in this matter is Rs. 21,00,000/-. It is submitted by the learned Counsel for the appellant that the

respondent/accused is owning immovable property and also produced an Encumbrance Certificate in respect of the property owned by the

accused and further submitted that in C.3.No.255 of 2005 pending on the file of this Court the respondent/accused, viz., T.K. Rajendra Sha has

given an unconditional undertaking stating that he would not alienate the property owned by him. The learned Counsel also produced a copy of the

affidavit filed by the respondent/accused and in paragraph 3 of the said affidavit, the particulars regarding the property owned by the

accused/respondent is clearly mentioned as the property bearing No. 47, Akbar Sahib Street, Triplicane, Chennai - 5. The said affidavit was filed

before this Court on 29.04.2005 in the above said pending suit and it is also stated by the respondent herein in that affidavit that he is aged about

77 years. As per the submission of the learned Counsel for the appellant, the above said properly owned by the accused/respondent would fetch

not less than a Crore. Therefore, considering the above said facts, this Court is of the considered view that awarding the cheque amount, viz., Rs.

21,00,000/- as compensation to be paid by the accused/respondent to the appellant/complainant would meet the ends of justice apart from the

sentence of till rising of the Court. Accordingly, the respondent/accused is directed to pay an amount of Rs. 21,00,000/- as compensation to the

appellant/complainant u/s 357(3) of the Code of Criminal Procedure within a period of two months from the date of receipt of a copy of this order.

It is also made clear that in the event of default of payment of compensation amount of Rs. 21,00,000/-, it is open to the appellant to take steps to

recover the same as contemplated u/s 421 of the Code of Criminal Procedure.

The respondent/accused is directed to appear before the learned trial Magistrate, viz., IX, Metropolitan Magistrate, Saidapet, Chennai, to

comply with the sentence of till rising of the Court on 30.11.2007 at 10.30 a.m.