V. Ramakrishnan vs R. Arumugam

Pratap Singh, J.—The accused in C.C. No. 165 of 1993, on the file of the Judicial Magistrate No. 6, Coimbatore, had filed this petition u/s

482 of the Criminal Procedure Code, 1973, praying to call for the records in the above case and to quash the same.

The short facts are : The respondents has filed a private complaint against the petitioner for an offence u/s 138 of the Negotiable Instruments

Act, 1881 (which I shall hereafter refer to as ""the Act""). The allegations in it are briefly as follows : For the debt due, on September 15, 1992, the

accused issued a cheque in favour of the complainant for Rs. 4,00,000 dated February 15, 1993. The complainant presented the cheque on

February 17, 1993, through Central Bank, Peelamedu. It was returned with a memo ""payment countermanded"" on February 18, 1993. Without

providing sufficient funds, with a view to cheat, the accused had given instructions to countermand the payment. The complainant sent the statutory

notice on March 3, 1993. After giving the reasons that the accused was not available in his address, it was returned on March 13, 1993. The

accused had deliberately evaded the receipt of the notice. Hence the complaint.

Mr. K. Mohanram, learned counsel appearing for the petitioner, would submit that the complaint is liable to be quashed on the following

grounds : 1. The cheque was returned with a memo, ""payment countermanded"" and it could not be an offence u/s 138 of the Act. 2. The notice

was returned and not served on the accused and only in a case where the notice was served on the accused, the requirements for making out an

offence u/s 138 would be completed.

I have carefully considered the submissions made by learned counsel. To consider the first submission, the relevant allegations made in

paragraph 8 of the complaint need be stated. In it, it is stated that the cheque was returned with a memo dated February 18, 1993, ""payment

countermanded"". It is further alleged that sufficient funds were not deposited in the bank and with an intention to cheat, the instruction of payment

countermanded"" was given. Thus, the allegations in the complaint are to the effect that there was no sufficiency of funds in the account of the

accused and that the cheque was returned with a memo ""payment countermanded"". So, it can be seen only during the course of trial when the

evidence is let in as to whether the cheque was returned for the reason funds were insufficient or because of the instruction ""payment

countermanded"". That stage would come only at the time of the trial and on that submission, the complaint cannot be quashed at its threshold.

To consider the second submission, the relevant allegations made in paragraph 9 of the complaint need be stated. In it, it is stated that the

statutory notice was kept waiting in the office of the accused till March 12, 1993, by giving the reason that he was not available and it was returned

to counsel for the complainant on March 13, 1993. It is further alleged that the accused has deliberately evaded receipt of the notice. It is to be

seen whether on these allegations, it can be said that the requirements of section 158 of the Act are satisfied. In A.R. Steels v. Coromandel Steel

Products [1992] 74 Comp Cas 762; [1992] 1 MWN (Cri) 55 a similar question was considered. In that case, the allegations in the complaint are

as follows (at page 764) :

The complainant states that, in order to circumvent and escape from the attraction of mischief u/s 138 of the Negotiable Instruments Act, he

managed to return the above-said notice with an endorsement on January 19, 1991. Immediately after the return of the said notice, the complainant

went to the business place of the accused wherein he is still doing business and asked him to take the notice which he refused. The complainant has

sent the notice by registered post with the proper address and by paying postal charges, so it is deemed that the service of the notice is effected on

the accused.

While considering whether the above allegations are sufficient, I have held that the above, if proved, would clearly amount to constructive

service of notice and that it is idle to contend even in such circumstances and in the face of such positive allegations that there was no service of

notice and hence, the offence u/s 138 of the Negotiable Instruments Act is not made out. The aforesaid allegations would go to show that the

accused was quite aware of the sending of the notice by the complainant and deliberately evaded receipt of the same. The ratio of this ruling

applies to this case. In Vasudevan (G.) v. Rajammal [1992] 1 MWN (Cri) 241, I have held that deliberate evasion to receive the notice would

amount to constructive service of notice. In this case also in paragraph 9 of the complaint, it is clearly averred that deliberately the accused had

evaded receipt of notice. But that would come within the ratio of the above ruling. Hence, I am unable to accept this submission made by Mr. K.

Mohanram.

Mr. K. Mohanram would rely upon Rajiv Kumar Vs. State of U.P., In that case the postal acknowledgment shows that it was delivered to one

Guddu and not to the opposite party. The said acknowledgment does not show that it was addressed in the name of the accused/opposite party.

So, it was held that in the absence of service of notice u/s 138(b) of the Act, no prosecution and cognizance of offence is permitted. This ruling

does not apply to the facts of the instant case.

In the result, the petition fails and shall stand dismissed.