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TMI Blog2017 (8) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... n and his wife, who is the mother of the said Kumar, namely, Sujatha Ramanathan and conveyed the requisition made by their son Kumar. In turn, the parents of Kumar had stated to the respondent that they did not have the sufficient amount to help their son and therefore, they requested the respondent that if she helped him, the said amount would be repaid by them shortly. 4.Realizing the genuine need of the said three persons, the respondent had paid Rs. 10,00,000/- by way of cash to the said Kumar on 09.09.2007. In fact, the said three persons came in person and received the amount from the respondent. For the said amount of Rs. 10 lakhs, which was given as hand loan to the said Kumar, the parents of him stood as Guarantors and all of them agreed to repay the amount to the respondent within two months. 5.As assured, they did not come forward to pay back the amount to the respondent. It was repeatedly demanded by the respondent and therefore, all the three persons had given a Cheque, of course, in the name of the mother of the said Kumar, i.e., Mrs.Sujatha Ramanathan, i.e., the petitioner in an S.B.A/c of Indian Overseas Bank, Stella Marries College Branch, Chennai-86, bearing No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court is that the respondent did not have the means to part with a huge sum of Rs. 10 lakhs by way of hand loan to the petitioner and her family members i.e., her son and her husband. Also, the petitioner had taken a defence that even though a cheque was issued in the name of the petitioner, there was no statutory notice issued by the respondent to the petitioner, as the notice issued by the respondent consisting of all the three names including the petitioner, was not received, either by the petitioner or the other two accused i.e., A1 and A3, and the same was received by some other person and therefore, in the absence of statutory notice, which is one of the necessary ingredients to proceed under Section 138 of the NI Act, the very complaint filed before the trial Court itself is not maintainable and therefore, the same should be dismissed. 11.The petitioner had also taken a defence that there was an enmity between the family of the petitioner and the respondent, with the result, by giving pressure and influence, the respondent family brought the petitioner and her family members before the Police where the respondent obtained the disputed cheque from the petitioner by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel appearing for the petitioner would submit that the notice said to have been received by the respondent dated 21.11.2007 was received by the third party by name Elumalai hence, it cannot be construed as a statutory notice within the meaning of Section 138 of the NI Act. 17.In this regard, the learned counsel appearing for the petitioner would submit that, since the demand by way of statutory notice is one of the necessary ingredients and in the absence of the same, the respondent cannot maintain a complaint under Section 138 of the NI Act. The learned counsel would further submit that though this defence was taken before the trial Court as well as the First Appellate Court, both Courts have failed to appreciate this and in spite of this defence, which according to the learned counsel for the petitioner, is a fatal to the very complaint given by the respondent, both the Courts have failed to consider this defence. 18.The learned counsel appearing for the petitioner, except these legal submissions, had not raised any other point or any legal submissions for the consideration of this Court. 19.Per contra, Mrs.B.Ramya, the respondent, who appeared party-in-person, has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed as per the provision of Section 138 of the NI Act and the statutory notice had been issued and served on the accused persons properly. Therefore, it was submitted by the respondent that the said defence taken by the petitioner cannot be treated as a valid defence. The respondent would also state that once the execution of the cheque as well as the signature on the cheque is admitted by the accused persons, the presumption under the Negotiable Instruments Act, would go in favour of the complainant i.e., the respondent herein and therefore, since they have failed to honour the cheque and to repay the amount, in spite of the statutory notice having been given to them, all the three accused persons are liable to be punished. However, the trial Court, because of the cheque was issued in the name of the 2nd accused, had acquitted A1 and A3 and convicted A2 only i.e., the petitioner herein. In this regard, the respondent would also submit that the Judgment though was appealed by the petitioner, the First Appellate Court also confirmed the Judgment of the trial Court and therefore, absolutely there is no ground to interfere with the said Judgments made concurrently and hence, she pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his point, in 2007 (6) SCC 555 in the matter of C.C. Alavi Haji vs Palapetty Muhammed & Another. In the said Judgment, the Hon'ble Apex Court, by taking recourse to Section 27 of the General Clauses Act, 1897, has held as follows: "8. Since in Bhaskarans case (supra), the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: Will there be any significant difference between the two so far as the presumption of service is concerned? It was observed that though Section 138 of the Act does not require that the notice should be given only by post, yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short G.C. Act) could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. 9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappas case (supra). Elaborately dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice..... 10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. .... 13.According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would hap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act''. 28.The said Judgment in fact has been reiterated and amplified by the Judgment of the Hon'ble Supreme Court reported in 2014 (12) SCC 685, in the matter of M/s. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, wherein the Hon'ble Apex Court has held as follows: 6. In C.C. Alavi Haji, a three-Judge Bench of this Court was dealing with the question referred by a two-Judge Bench for consideration. The referring Bench was of the view that in D. Vinod Shivappa v. Nanda Belliappa[3], this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station , due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 10. It is thus clear that Section 114 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Apex Court has held that, the complaint is entertainable and the alleged offence is triable. Here, in the case in hand, in fact, notice has been served and the personal staff of the petitioner has received the same and acknowledged and the said copy of the notice as well as the postal acknowledgement card had also been marked as Ex.P.4 and Ex.P.5. before the trial Court. Therefore, the facts of the present case is far better than the case as referred to in the two cases cited above. Therefore, the principle laid down by the Hon'ble Apex Court, in this regard, especially, in the context of Section 27 of the General Clauses Act, would squarely applicable to the present case also and in fact, the present case is in still better footing than those two cases. When the principle enunciated in those Judgments since can be relied upon, the petitioner cannot raise the plea of non-service of notice and therefore, the said plea is liable to be rejected. 30.Apart from the said legal submission, no other ground was urged by the learned counsel for the petitioner. However, in order to consider the Judgments of the Courts below, in this Revision, this Court wants to go into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand or communication of the demand within 15 days, because service of notice is part of cause of action for lodging the complaint. 37.In the Judgment in (2015) 2 MLJ (Crl) 708 (SC) cited supra, it was held at Para 13 of the Judgment that, no other person is contemplated by Section 138 as being entitled to be issued such notice. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than the drawer. 38.There can be no quarrel on these broad principles that have been enunciated in the Judgments cited supra. 39.Here, in the case in hand, admittedly, there was a notice on 21.11.2007 and the said notice was received by the responsible sub-staff or assistant of the petitioner's house/family on 22.11.2007. Therefore, absolutely there is no ground to show that there was no notice statutorily issued by the respondent and as such, notice was not served on the accused persons including the petitioner. 40.In fact, this defence vehemently raised by the petitioner's side, has been considered by the First Appellate Court, at Para 9 of the Judgment, which is impugned hereunder: "9.On considering both sides submissions and the appeal groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant." 43.If the said principle of the aforesaid Judgment is applied to the present case, it can be safely concluded that the petitioner/accused did not bring any rebuttable presumption as the presumption has already been in favour of the complainant and against the accused within the meaning of Section 138/139 of the NI Act. Therefore, this Court finds that there is no ground to interfere with the order of the trial Court, as has been confirmed by the order of the First Appellate Court. 44. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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