IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.10.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.25922/2006 Crl.MP.No.1/2006 K.Ramaiah Petitioner Vs R.Sudhkhara Naidu Respondent Prayer:- This Criminal Original Petition is filed to call for the records in CC.No.10/2005 on the file of the learned Judicial Magistrate, Tiruttani and to quash the same. For Petitioner : Mr.P.K.Rajagopal For Respondent : Mr.K.Natarajan ORDER This Criminal Original Petition is filed to quash the proceedings in CC.No.10/2005 on the file of the learned Judicial Magistrate, Tiruttani. 2. The impugned proceedings were initiated against the Petitioner, alleging that when the cheque bearing No.282873 dated 10.5.2004 for Rs.1,00,000/- drawn on Bank of India, Sowcarpet, Madras issued by the Petitioner to discharge the part satisfaction of the total due, has been presented by the Respondent through Indian Bank, Podhaturpet on 11.10.2004, it was returned by the Bank of India as "Account Closed" with a return memo stating that the account has been closed. 3. On 18.10.2004, the return memo along with the said cheque was handed over by the complainant's Banker to the complainant on 19.10.2004 at Podhaturpet. The complainant had sent a registered notice dated 30.10.2004 and registered on 2.11.2004 to the Petitioner and it is alleged that the same had been returned, as the Petitioner was not found in the address at No.4, Bajanai Koil Street, Choolaimedu, Nungambakkam, Chennai-94. 4. Mr.P.K.Rajagopal, the learned counsel for the Petitioner submitted that the Petitioner did not have the bank account alive on the date of the alleged issuance of the cheque i.e. on 10.5.2004 and the blank cheque issued by him to one Subramanian and his wife as security for the promissory notes had been misused as the impugned cheque. https://hcservices.ecourts.gov.in/hcservices/ 4a. The main contention of the learned counsel for the Petitioner is that the Petitioner never resided at the address at No.4, Bajanai Koil Street, Choolaimedu, Nungambakkam, Chennai-94 either on 10.5.2004 or thereafter till today and he is continuously residing at Old No.11, New No.10, Raghavan Street, Nungambakkam, Choolaimedu, Chennai-94 from June 1994. 5. The learned counsel for the Petitioner would submit that the statutory notice under Section 138 of the Negotiable Instruments Act (herein after referred to as the Act) was not served on the Petitioner and the same has been sent to an address, wherein the Petitioner never resided. In fact, the summons from the court aftr the complaint was taken on file has been served on him only to the address at Old No.11, New No.10, Ragavan Street, Nungambakkam, Choolaimedu, Chennai. 6. The learned counsel for the Petitioner relied on the decision of this court rendered in the case of R.M.Sundram Vs. C.M.Ramraj [1994-1-LW-Crl-369], wherein it was held that when the statutory notice sent to the accused by registered post returned with an endorsement "not found" the complaint filed is without compliance of the requirement as to "receipt of notice" by the accused under sub section (c). It held thus:- "Sub section(c) thereof further provides that the drawer has to comply with the demand within 15 days of the receipt of the said notice. Only if the demand is not complied with, within the time so specified the cause of action accrues for lodging of a complaint within a period of one month, as contemplated by sub section (b) of the S.142 of the Act. For determining the period of one month, the actual receipt of the notice, as contemplated under sub section(C) of S.138 is necessary and without such information, limitation, provided for the launching of Prosecution under sub section (b) of Section 142 cannot at all be determined. Sub section(c) of S.138 does not at all contemplate any constructive notice. If constructive notice has been contemplated under the said sub section by the Legislature, sufficient phraseology would have been utilised for such a purpose. The language used therein, namely, 'receipt of a said notice', unambiguously points out actual receipt of notice. In the case on hand notice issued had not been actually served, but it had been returned with a postal endorsement as 'not found'. Such being the case, it cannot at all be stated that the provisions of sub section(c) of the said section had been duly complied with and the non compliance of the said provision is sufficient enough for the prosecution to be thrown back, lock, stock and barrel, as contended by the learned counsel for the Petitioner accused. https://hcservices.ecourts.gov.in/hcservices/ It is not as if the notice has been returned as 'refused to receive' and in such an eventuality, one can attribute knowledge on the part of the person responsible for the refusal of such a notice. In the case of a postal acknowledgement as 'not found' which is exactly the situation in the case on hand, it cannot be stated that there could have been any sort of willful evasion of such a notice, inasmuch as issuance of such a notice could not be put to the knowledge of the person to whom it was intended." 7. Section 138 of the Act contains a penal provision. It is a special statute and it creates a vicarious liability. Even the burden of proof to some extent is on the accused. Having regard to the purport of the said provision as also in view of the fact that it provide for a severe penalty, the provision warrants a strict construction. Proviso appended to Section 138 contains a non obstante clause. It provides that nothing contained in the main provision shall apply, unless the requirements prescribed therein are complied with. Service of notice is one of the statutory requirements for initiation of a criminal proceedings. Such a notice is required to be given within 30 days of the receipt of the information by the complainant from the Bank regarding the cheque as unpaid. Clause (c) provides that the holder of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the said notice. A complaint petition, thus, can be filed for commission of an offence by a drawee of a cheque only 15 days after service of notice. What are the requirements of service of a notice is no longer res integra, in view of the recent decision of the Honourable Supreme Court rendered in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another [2007-AIR-SCW- 3578]. 8. The notice is required to be dispatched to the accused to the correct address, as its contents are required to be communicated. Thus, communication to the accused about the fact of dishonouring of the cheque and calling upon him to pay the amount within 15 days are imperative in character. Service of notice is a part of cause of action for lodging the complaint. 9. In the case of K.Baskaran Vs. Sankaran Vaidhyan Balan and another [1999-7-SCC-510], importance of service of notice has been pointed out stating thus:- "In Blacks Law Dictionary "giving of notice" is distinguished from receiving of the notice (vide p.621): A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. A person "receives" a notice when it is duly delivered to him or at the place of his business." 10. The submission of the learned counsel for the Petitioner that the allegations made in the complaint if did not subserve the requirements of law was not maintainable and thus the https://hcservices.ecourts.gov.in/hcservices/ same cannot be entertained has all its force. The learned Magistrate has proceeded on the basis that the dispatch of notice to the accused to the given address, though returned as "not found" would subserve the requirements of law is contrary to the law, and no presumption can be raised in regard to the service of notice as the same has not been effected in terms of the Statute. 11. For the reasons stated above, I am of the considered opinion that the impugned proceedings cannot be sustained and accordingly, it is set aside and this Criminal Original Petition is allowed. Consequently, the connected MP is closed. Srcm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1.The Judicial Magistrate, Tiruttani 2.Do Through the Chief Judicial Magistrate, Thiruvallur. + 1 cc to Mr.P.K.Rajagopal, Advocate SR No.57229 Order in Crl.OP.No.25922/2006 KU(CO) SR/20.11.09 https://hcservices.ecourts.gov.in/hcservices/