BAIL SLIP The Appellant/Accused viz., K.Rajamanickam, S/o. Kailasa Gounder, was directed to be released on bail as per the order of this court dated 28.8.2008 and made in CRL MP No.1 of 2008 in Crl RC No.1158 of 2008 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1158 of 2008 K.Rajamanickam .. Petitioner/Accused Vs P.Arumugam .. Respondent/Complainant PRAYER: Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C. to set aside the order dated 29.05.2008 passed by the learned Additional District Sessions Court/Fast Track Court No.II, Salem made in C.A.No.104 of 2007 confirming the judgment and sentence dated 02.07.2007 in C.C.No.408 of 2004 on the file of the Judicial Magistrate No.IV, Salem. For Petitioner : Mr.K.Selvaraj For Respondent : Mr.T.Sezhian O R D E R The accused, who was punished by the trial court for an offence under Section 138 of the Negotiable Instruments Act, 1881, after unsuccessfully prosecuting an appeal against the conviction and sentence, has come forward with the present criminal revision case. 2. The petitioner herein came to be convicted of the said offence in C.C.No.408/2004 on the file of the Judicial Magistrate No.IV, Salem, a case instituted by the respondent on a private complaint based on the dishonour of a cheque issued by the petitioner in favour of the respondent, marked as Ex.P1. The said complaint was preferred after the statutory notice sent to the petitioner informing him of the dishonour and calling upon him to make payment of the cheque amount returned un-served. The respondent/complainant figured as the sole witness (P.W.1) and Exs.P1 to P6 were marked on the side of the respondent herein/complainant. The petitioner herein/accused figured as the sole witness (D.W.1) and he produced Exs.D1 to D3 on his side. The https://hcservices.ecourts.gov.in/hcservices/ learned Judicial Magistrate No.IV, Salem, after trial, held the petitioner herein/accused guilty of the offence with which he stood charged, convicted him and punished him with simple imprisonment for one year. It also passed an order directing payment of the cheque amount as compensation to the respondent/complainant. 3. As against the said judgment of conviction and sentence and also against the order directing payment of compensation, the petitioner preferred criminal appeal No.104/2007 on the file of the Sessions Court, Salem, which came to be dismissed by a judgment dated 29.05.2008 of the learned Additional District and Sessions Judge (Fast Track Court No.II), Salem. The conviction recorded and the sentence awarded including the order for payment of compensation made by the trial court, which stands confirmed by the appellate court, is challenged in the present criminal revision case on the grounds enumerated in the Memorandum of Criminal Revision Case. 4. The arguments advanced by Mr.K.Selvaraj, learned counsel for the petitioner and by Mr.T.Sezhian, learned counsel for the respondent have been heard. The original records sent for from the courts below have also been perused. 5. Though a number of grounds have been raised in the Memorandum of Criminal Revision Case, the learned counsel for the petitioner mainly relies on the contention that the condition precedent for launching prosecution for an offence under Section 138 of the Negotiable Instruments Act, 1881, has not been fulfilled and that the failure to comply with the said essential condition is fatal to the complainant's case, which should inevitably lead to the acquittal of the petitioner/accused. The learned counsel for the petitioner has drawn the attention of the court to the observation made by the learned trial judge to the effect that the statutory notice issued to the petitioner citing an address in Yercaud was redirected to his official address at Pallipatti, Salem but the same was returned with endorsements made in red ink without signature and date to the effect that the said tapal was not "claimed", whereas the trial court misconstrued it and made an observation to the effect that the petitioner refused to receive the said tapal when it was tendered to him by the postman. According to the submission made by the learned counsel for the petitioner, the said mistake shall go to the root of the case, as it can be even termed a perverse finding. 6. On the other hand, the learned counsel for the respondent would submit that the very fact that the notice sent to Yercaud address was redirected to the address admitted to be the office address of the petitioner and the endorsement of the postman to the effect that it was not claimed, would show that intimation regarding receipt of the notice was given to the petitioner/accused and despite the receipt of such intimation, the petitioner/accused omitted to get the tapal and that therefore, it must be construed that the notice was duly served on him. As a corollary to the above said contention, the learned counsel for the respondent also https://hcservices.ecourts.gov.in/hcservices/ contends that the submission made on behalf of the petitioner that the condition regarding service of notice has not been complied with, should be discountenanced. 7. This court paid it anxious consideration to the above said submissions made on both sides. 8. Though the criminal revision is against the concurrent finding of the courts below holding the petitioner guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881, when a finding of the courts below is attacked as perverse, this court has to go through the evidence to find out whether there is any perversity in the finding of the courts below. The learned trial judge, namely Judicial Magistrate No.IV, Salem, in the judgment of the trial court, has incorporated observations suggesting that the court was of the view that sending a notice to a village wherein the addressee has got immovable property, even though he/she is not resident of that place, would be sufficient. However, the learned Judicial Magistrate No.IV, Salem did not base the finding regarding service of statutory notice on the mere fact that the petitioner was owning immovable properties in Yercaud, where the notice was originally sent. On the other hand, the learned Judicial Magistrate No.IV, Salem has relied on the fact that the postal authorities, after noting the fact that the addressee was not found in Yercaud, somehow got the address of the office of the petitioner in Pallipatti, Salem and redirected the same to the said address. To that extent, the above said observation of the learned Judicial Magistrate No.IV, Salem is correct. But the observations that followed is totally perverse. There is no iota of evidence to show that the respondent/accused refused to receive the said tapal marked as Ex.P6, when it was sought to be delivered by the postman to him. On the other hand, the endorsement found in Ex.P6 is "not claimed". "Not claimed" cannot be equated to "refused". The learned Judicial Magistrate No.IV, Salem, chose to make an observation that the said notice when sought to be delivered to the petitioner, was refused, which is totally contrary to record. 9. An attempt made by the learned counsel for the respondent to show that there was an admission on the part of the petitioner while he deposed as D.W.1 that he refused to receive the said letter when it was sought to be delivered at the admitted address of his office. But the said contention is not based on the correct interpretation of the answers elicited from D.W.1. During cross examination, he was asked whether he owned properties at Yercaud and whether the address to which Ex.P6 was redirected was the address of his office at Pallipatti, Salem. The answer made by D.W.1 was in the affirmative. The said answer, at no stretch of imagination, can be construed to be an admission that he refused to receive the same, when it was sought to be delivered to him. Nothing has been elicited from D.W.1 to show that the postman left an intimation regarding the availability of the registered tapal so as to enable the petitioner herein/accused to go to the post office and claim it. It is pertinent to note that the endorsements found https://hcservices.ecourts.gov.in/hcservices/ in Ex.P6 "not claimed" are not accompanied by the signature of the postman found in Ex.P6 or post master. No admission has been elicited from D.W.1 to the effect that, despite receipt of intimation regarding the availability of the registered tapal, he failed to claim and receive it. The respondent cannot be heard to contend that there is evidence in proof of intimation having been given to the petitioner and despite the same the petitioner neglected and omitted to claim the tapal containing the statutory notice. Therefore, the contention of the learned counsel for the petitioner that the statutory notice was not duly served on him and hence the condition precedent for preferring a complaint has not been complied with, has got to be countenanced. 10. It should also be noticed that the complaint does not contain even the date on which the statutory notice was served on the petitioner or at least deemed to have been served on the petitioner. The respondent/complainant has simply produced the postal receipt evidencing the posting of the same by registered post and also a letter of the Senior Post Master, Salem Customer Care Centre, Head Post Office, Salem-1 dated 23.09.2004, which does not contain the particulars as to whether the registered tapal was either served on the petitioner/accused or returned un-served. The contents of the said letter, which has been marked as Ex.P4, is to the following effect "I am in receipt of your letter cited above regarding non-receipt of acknowledgment in respect of registered letter No.3624 dated 13.08.2004 booked at Salem District Court Building post office. I am enquiring into it and I will write to you again shortly. In the meanwhile, if you are in receipt of acknowledgment card or have any communication regarding delivery of the article through any other source, you are requested to intimate the same to this office". The said letter cannot be construed to be a certificate or intimation from the post office evidencing service of notice sent by registered post bearing registered letter No.3624. 11. The respondent/complainant has also failed to examine either the post master or the post man to show that, in fact, intimation regarding the availability of the registered tapal with the concerned post office or postman was given to the petitioner/accused to urge that despite service of intimation, the petitioner neglected and failed to receive the tapal and the same would amount to due service of notice. In fact the complaint is silent about the date of service of notice or the deemed date of service of notice. In the absence of such averments, as rightly contended by the learned counsel for the petitioner, the complaint itself would not be maintainable. 12. For all the reasons stated above, this court comes to the conclusion that the petitioner has successfully established that there was perversity in the finding of the trial court as well as appellate court regarding the service of statutory notice, which is a condition precedent for prosecuting a person for an offence under Section 138 of the Negotiable Instruments Act, 1881 and that therefore it is a fit case in which this court, in exercise of its https://hcservices.ecourts.gov.in/hcservices/ revisional power, should interfere and set aside the conviction recorded by the trial court, which was also confirmed by the lower appellate court. 13. In the result, this criminal revision case is allowed. The judgment of the learned Additional District Sessions Judge (Fast Track Court No.II), Salem, dated 29.05.2008 made in C.A.No.104/2007 confirming the conviction recorded by the trial court and the sentence awarded by the trial court including the order directing payment of compensation is hereby set aside. The appeal C.A.No.104/2007 on the file of the said appellate court shall stand allowed. Consequently, conviction recorded and the sentence awarded and also the order directing payment of compensation passed by the trial court in its judgment dated 02.07.2007 made in C.C.No.408/2004 are set aside. The revision petitioner/accused is acquitted of the offence for which he was prosecuted. Fine amount, if any, collected towards compensation awarded by the trial court shall be refunded to the petitioner. Bail bond, if any, executed by the revision petitioner/accused shall stand discharged. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr/ Copy to 1)The Additional District Sessions Court/Fast Track Court No.II, Salem 2)The Judicial Magistrate No.IV, Salem. 3)-Do- Through The Chief Judicial Magistrate, Salem 1 cc To Mr.K.Selvaraj, Advocate, SR.79895 1 cc To M/s.R.Meenal, Advocate, SR.79628 Crl.R.C.No.1158 of 2008 PKB (CO) RH (22.11.10) https://hcservices.ecourts.gov.in/hcservices/