IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:03.12.2008 Coram The Honourable Mr. JUSTICE K.MOHAN RAM Crl. O.P. No.26124 of 2008 K.P.Murali .... Petitioner -Vs.- M/s. Vitan Departmental Stores Rep. by its Director V.P.Chokkani Rep. by his P.A. Rathiah Chokhani Towers, 5th Floor, New No.29, Old No.16 Whites Road Royapetth, Chenni – 600 014 .... Respondent Prayer:- Criminal Original Petition filed under Section 482 of Cr.P.C., praying for a direction to call for the records in C.C.No.3294 of 2007 pending on the file of the VII Metropolitan Magistrate, George Town, Chennai and quash the same. For Petitioner : Mr. N.Suresh kumar For Respondent : Mr. Sidharth Sivalingam - - - O R D E R The petitioner who is the accused in C.C.No.3294 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, and who is facing trial for an offence under Section 138 of the Negotiable Instruments Act has filed the above Criminal Original Petition under Section 482 of the Criminal Procedure Code seeking to quash all further proceedings therein. 2. Learned counsel for the petitioner submitted that in respect of the dishonour of the three cheques issued by the petitioner the complainant/ respondent herein has stated that a statutory notice was sent on 04.01.2007 but the same was returned with the postal endorsement 'Intimation Delivered' on 13.01.2007 and treated the same as deemed service of notice. The complaint was filed and the same has been taken on file. He further submitted that during the course of cross-examination of P.W.1 he has admitted that a notice dated 14.11.2006 was sent when the three cheques were presented for encashment for the first time but the same was returned un-served with the postal endorsement “left”; the returned notice has been marked as Ex.D-1. He further submitted that since admittedly the complainant had sent a notice on 14.11.2006 and the same had been returned with the postal endorsement 'left” he ought to have filed the complaint since already the cause of action for filing the complaint has accrued but instead of that the complainant had again presented the cheques for encashment and on the cheques being returned unpaid again the second notice dated 14.01.2007 has been https://hcservices.ecourts.gov.in/hcservices/ sent and on the alleged cause of action said to have arisen on the basis of the second notice sent by the complainant the complaint has been filed which as per law is not maintainable. He further basing reliance on the decision of the Apex Court reported in 1998 (II) CTC 462 (Sandanandan Bhadran v. Madhavan Sunil Kumar) wherein in paragraph 10 it has been held as under:- “10. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too, within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour, a fresh right — and not cause of action — accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice under clause (b) of Section 138, he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires.” submitted that the complaint filed based on the alleged second cause of action is not maintainable. Learned counsel for the petitioner further submitted that in the light of the provisions contained under Section 27 of the General Clauses Act 1897 even if the notice is returned with the postal endorsement “left” it should be deemed to have been served and as such the cause of action for filing the complaint had already accured and therefore the complainant ought to have filed the complaint on the basis of such cause of action, but when admittedly, the complainant has not filed the complaint and had chosen to present the cheques for encashment for the second time and only based on the alleged second cause of action the complaint had been filed the cognizance taken on that basis is bad. 3. Countering the said submissions, the learned counsel for the complainant / respondent herein submitted that when the trial has already commenced, based on the answers elicited during the course of cross-examination of P.W.1, the above quash petition has been filed, and as such the same is not maintainable. According to the learned counsel the points that are being raised in the above quash petition ought to be raised only before the trial court. He also relied upon a decision of the Apex Court reported in (2004) 8 Supreme Court Cases 774 = CDJ 2004 SC 1191 (V.Raja Kumari v. P.subbarama Naidu and another). In the said decision it is laid down as under:- https://hcservices.ecourts.gov.in/hcservices/ “14. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act, 1897 will be useful. The section reads thus: '27. 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 served by post, whether the expression ‘serve’ or either of the expression ‘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, prepaying 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.' 15. No doubt Section 138 of the Act does not require 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 dispatched 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. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. 16. This position was noted by this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and another (1999) (7) SCC 510). 17. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. Service of notice of demand in clause (b) of the proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the Act. In the present appeal there is no dispute that notice was in writing and this was sent within fifteen days of receipt of information by the appellant Bank regarding return of cheques as unpaid. Therefore, the only question to be examined is whether in the notice there was a demand for payment. (See Central Bank of India v. Saxons Farms.) 18. At this juncture it is relevant to take note of order passed by this Court in State of M.P. v. Hiralal and others (1996) (7) 523). It was, inter alia, noted as follows: “In view of the office report, it would be clear that the respondents obviously managed to have the notice returned with postal remarks ‘not available in the house’, ‘house locked’ and ‘shop closed’ respectively. In that view, it must be deemed that the notices have been served on the respondents.” https://hcservices.ecourts.gov.in/hcservices/ 19. In Madhu v. Omega Pipes Ltd (1994 (1) ALT (Crl) 603 (kerala) the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court and Justice K.T. Thomas (as His Lordship then was) observed as follows: “In clause (c) of the proviso the drawer of the cheque is given fifteen days from the date ‘of receipt of the said notice’ for making payment. This affords clear indication that ‘giving notice’ in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrongdoer to take advantage of his tactics. Hence the realistic interpretation for the expression ‘giving notice’ in the present context is that, if the payee has dispatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice.” 20. Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of noticee, the inference that is to be drawn has to be judged on the background facts of each case." Relying on the aforesaid decision the learned counsel for the respondent submitted that an opportunity should be given to the complainant to show that the accused has managed to get an incorrect postal endorsement and what is the effect of it has to be considered during the course of trial only. To the very same effect the learned counsel for the respondent referred to the decision of the Apex Court reported in (2008) 8 Supreme Court Cases 529 (INDO AUTOMOBILES v. JAI DURGA ENTERPRISES) wherein the aforesaid decision rendered in the case of V.Raja Kumari v. P.subbarama Naidu and another has been relied upon. 4. I have carefully considered the said submissions made by the learned counsel on either side. Admittedly the facts are not in dispute. In the decision reported in (2004) 8 Supreme Court Cases 774 = CDJ 2004 SC 1191 (referred to above) in paragraph 18 the Apex Court has observed as under:- “18. At this juncture it is relevant to take note of order passed by this Court in State of M.P. v. Hiralal and others (1996) (7) SCC 523. It was, inter alia, noted as follows: “In view of the office report, it would be clear that the respondents obviously managed to have the notice returned https://hcservices.ecourts.gov.in/hcservices/ with postal remarks ‘not available in the house’, ‘house locked’ and ‘shop closed’ respectively. In that view, it must be deemed that the notices have been served on the respondents.” In view of the above it has to be held that though the notice sent by the complainant on 14.11.2006 had been returned with the postal endorsement “left” it should be deemed to have been served on the accused / the petitioner herein. If that be so, the cause of action has already arisen for the complainant to file the complaint but admittedly no complaint was filed. But the respondent had again presented the three cheques for encashment and when the cheques were returned / dishonoured, the second notice was sent which was also returned with the postal endorsement “Intimation Delivered” and treating the failure of the respondent to comply with the demand contained in the second notice as an accrual of a fresh cause of action the complaint has been filed. Therefore it is clear that the complaint has been filed on the alleged second cause of action. 5. As laid down in the decision reported in 1998 (II) CTC 462 (referred to supra) by the Apex Court that there can be only one cause of action and such cause of action, as pointed out above, has already arisen and as such the complaint filed on the basis of the second cause of action ought not to have been taken cognizance of by the learned Magistrate. 6. It has to be pointed out that it is not the case of the respondent that the accused / the petitioner herein had managed to get the incorrect postal endorsement made and there is no need to consider the effect of the same in the trial. Therefore the said contention of the learned counsel for the respondent cannot be countenanced. When, as pointed out above, the facts are not in dispute it is not necessary that the question that arise for consideration should be left to be decided by the trial court. Only if the issue that arises for consideration is decided at the earliest and a disposal is given it will enable the complainant / respondent herein to seek the alternative remedy of filing a suit to recover the amounts covered by the three cheques as otherwise such a remedy will also become time barred. 7. For the aforesaid reasons the contentions put forth by the learned counsel for the petitioner merit acceptance and accordingly the above Criminal Original Petition is allowed and all further proceedings in C.C.No.3294 of 2007 pending on the file of the VII Metropolitan Magistrate, George Town, Chennai, is hereby quashed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ srk To 1. The VII Metropolitan Magistrate, George Town, Chennai 2. -Do-Thro The Chief Metropolitan Magistrate Egmore, Chennai - 8 Crl.O.P.No.26124 of 2008 LA(CO) SRA(18/12/2008) https://hcservices.ecourts.gov.in/hcservices/