S.Senthil vs S.Sundar
2022 Latest Caselaw 16099 Mad

                                                                        Crl.O.P.No.25069 & 28416 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 11.10.2022

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                          Crl.O.P.No.25069 &28416 of 2015
                                                        and
                                              Crl.M.P.No.4874 of 2016
                                                        and
                                                M.P.Nos.1, 1 of 2015

                     Crl.OP.No.25069 of 2015

                     S.Senthil
                     S/o.Subramanian
                     6-112, Karuppanarkoil Street
                     Ward 6, Muthugapatti Post
                     Namakkal 637 405                                      .. Petitioner

                                                         Vs.

                     S.Sundar
                     S/o.Subramanian
                     304, West Pondy Road
                     Valavanur
                     Villupuram                                            .. Respondent

PRAYER : This Criminal Original Petition is filed under Section 482 of

Cr.P.C., to call for the records in C.C.No.209 of 2015 on the file of the

Judicial Magistrate – III, Puducherry, and quash the same.

https://www.mhc.tn.gov.in/judis
                                                                        Crl.O.P.No.25069 & 28416 of 2015



                                      For Petitioner    : Mr.Murugendran

                                      For Respondent : Mr.R.Aswin Kumar
                                                       Legal aid counsel


                     Crl.OP.No.28416 of 2015

                     S.Senthil
                     S/o.Subramanian
                     aged about 40 years
                     6-112, Karuppanarkoil Street
                     Ward 6, Muthugapatti Post,
                     Namakkal 637 405                                      .. Petitioner

                                                         Vs.
                     Velvizhi
                     W/o.SenthiKumar
                     aged about 32 years
                     1st Cross, Vengateswara Nagar
                     Thiruvandarkoil
                     Puducherry.                                           .. Respondent

PRAYER : This Criminal Original Petition is filed under Section 482 of

Cr.P.C., to call for the records in C.C.No.208 of 2015 on the file of the

Judicial Magistrate – III, Puducherry, and quash the same.

For Petitioners : Mr.Murugendran

For Respondent : Mr.R.Aswin Kumar Legal aid counsel

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

COMMON ORDER

The Petitioner, who is the accused in C.C.No.209 of 2015 and

CC.No.208 of 2015, for the offence under Section 138 NI Act on the

complaint filed by the Respondents herein, which is pending trial before the

Judicial Magistrate III, Puduchcherry, has filed this quash Petitions.

2.The complainant in C.C.No.209 of 2015 is one S.Sundar,

S/o.Subramanian and complainant in C.C.No.208 of 2015 is one Velvizhi,

W/o.Senthil Kumar. The other particulars and facts are identical. In view

of the same, this Court is dispose both the Petitions by way of common

order. For the sake convenience, the Petitioner and Respondent are referred

as per their original nomenclature as Complainant and Accused in the

complaints.

3.The gist of the complaints is that the Petitioner/Accused is owner

and running a transport business in the name of “Namakkal Road Carriers”

having office at No.2, T.V.R & Sons Complex, Pondy a branch office at

main office at Venkateswara Complex, Namakkal. The

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

Complainant/S.Sundar, was working as Branch Manager from 2012 and

Complainant/Velvizhi was working as Stenographer in the Namakkal

Transport, Puducherry. The nature of work is arranging transportation

under commission basis, with private companies viz., (1).P.R.Acoustical

and Engineering Works (P) Ltd., (2).Acoustical (P) Ltd., (3).Supreme India

(P) Ltd.,, and other business entities which were situated in Thiruvandarkoil

area, Puducherry. The accused was residing at Namakkal district. The

payment to the lorry transporters and other expenses were paid by the

complainants, as per the arrangement, the accused to pay back the

complainants. In the month of July 2014, the accused informed that he is

closing the branch office due to tax problem and while settling the accounts

he had issued two post dated cheques to the Complainant/Senthil bearing

No.945352, dated 19.08.2014, for a sum of Rs.2,03,000/- and No.945368,

dated 30.08.2014, for a sum of Rs.4,00,000/-. He had also issued a post

dated cheque to the Complainant/Velvizhi bearing No.945353, dated

19.08.2014, for a sum of Rs.1,20,000/-. When the above cheques presented

before the Bank, the same were returned unpaid for the reason “insufficient

funds”. Thereafter, legal notice dated 11.09.2014 was issued by both the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

Complainants separately, as per law and the same was returned on

22.09.2014 for the reason that no such addressee. Thereafter, following the

statutory conditions complaint filed. The primary contention of the

Petitioner/accused is that in both the complaints averments are identical,

allegations similar, except, the first complaint filed by the branch Manager

and the second complaint filed by the Stenographer of Namakkal Road

Carriers, Puducherry.

4.According to the Petitioner/Accused, who is the owner of

Namakkal Karthi Transport and Namakkal Road Carriers, both the

complainants are employees under him. Taking advantage of the

Petitioner/Accused absence in Branch Office, Puducherry, the complainants

misused the cheques available in the Branch Office, filled up the same and

projected a case as if, cheques were issued in discharge of liability. Further

the statutory notice is not a notice as under Section 138 of NI Act. The

notice does not disclose under whose instruction it is issued, by demanding

to make payment of cheque in favour of “clients”. It is not in conformity to

Section 138 of NI Act. Further the learned counsel submitted that as per

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

Section 138 of NI Act, three conditions stipulated viz.,

(a)the cheque to be presented to the bank within a period of six

months,

(b)the payee or the holder in due course of the cheque, makes a

demand for the payment of the said amount by giving a notice in

writing, within thirty days and

(c)the drawer of cheque fails to make payment of the said amount

within fifteen days of the receipt of the said notice.

5.He further submitted that in this case, on a demurrer if it is taken,

there was a liability by the Accused, then to whom the accused to make

payment, in the absence of particulars of payee or the holder of the cheque.

The notice is not proper, as per condition precedent under Section 138 of

Negotiable Instruments Act. Hence, for completion of statutory

proceedings, the complaints to be quashed. In support of his contention, he

relied upon the decision of the Hon'ble Apex Court in the case of Rahul

Builders Vs. Arihant Fertilizers & Chemical and another reported in 2007

(5) CTC 876, wherein it is held that unless a notice is served in conformity

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

with Proviso (b) appended to Section 138 of the Act, the complaint petition

would not be maintainable. Further for the proposition that a penal

provision should be construed strictly, if the demand notice not only

represent the unpaid amount under cheque but also other incidental

expenses like costs and interests, and in the event of notice to be vague and

capable of two interpretations. In such cases, it is to be considered that

notice is improper notice.

6.Learned counsel for the Petitioner further relied upon the

decision of the Hon'ble Apex Court in the case of Jugesh Sehgal Vs.

Shamsher Singh Gogi reported in (2009) 14 SCC 683 for the principle that

inherent powers of this Court is to do substantial justice when materials and

records, that allowing the proceedings to continue would be, in abuse of

process of law, the case can be quashed. Further he placed reliance on the

decision of this Court in the case of Om Sakthi Real Agencies Vs. Vishual

Technologies in Crl.OP.No.21527 of 2019, wherein this Court following the

above Apex Court judgment held that the statute prescribed for service of

notice, specifying the specific particulars, the same has to be followed

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

strictly. Hence, in this case for non disclosure of the name of payee or

holder in due course, issuance of notice is not in compliance to Section 138

(b) and (c) of NI Act. Hence, the complaint to be quashed.

7.Learned counsel for the Petitioner submitted that the object and

purpose for giving notice is to inform the accused about the issuance of

cheque and cheque being dishonoured and giving opportunity to the

Accused to rectify the mistake.

8.Mr.S.Aswin Kumar, learned legal aid counsel appearing for the

Respondents submitted that in this case, both the complainants are

employees of the accused. The accused taken a technical plea that name of

the payee or holder in course is not mentioned in the statutory notice. The

accused not denied his liability for issuance of cheques. Though as per

Section 138 (b) of NI Act, issuance of notice in writing to the drawer of the

cheque is prescribed, no format is prescribed. The purpose of issuance of

notice in writing, is to make aware the drawer of cheque about cheque being

dishonoured, giving the drawer an opportunity to make good the cheque

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

amount or give reasons. In this case, the accused not received statutory

legal notice. Hence, cannot be prejudiced by taking a stand that the details

of the drawer, not available. According to the complainant, Advocate notice

in favour of the client with the details of cheque, such as date of cheque,

amount covered in the cheque, Bank details would be sufficient, would be

in compliance to Section 138 (b) of NI Act. He further submitted that if the

accused being honest and his present stand in the quash petition that the

cheques were misused by the complainants, he ought to have given a public

complaint or issued any notice, in this regard. Admittedly, no such steps

taken. On the other hand, keeping silent all these period and now making a

plea that payee or holder to the cheque details not available in the statutory

notice not proper, this belated defence taken to evade payment further

utmost it is a disputed fact. Further the complaint is filed by the same

Advocate, who issued the statutory notice will confirm that the

complainants are the noticees. He further submitted that mere demand of

payment is sufficient, would satisfy the condition under Section 138(b) of

NI Act. He further submitted, assuming mistake committed by the lawyer,

for which the complainants cannot be made to suffer. In this case, the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

Petitioner not received the notice and the same was returned, fulfilling the

condition of deemed service of notice.

9.Further, a demand as required under clause (b) of Section 138 is

sufficient. Further in the case of Pawan Kumar Ralli Vs. Maninder Singh

Narula reported in (2014) 15 SCC 245, the Hon'ble Apex Court, following

the decision made in Central Bank of India's case, held that five conditions

to be fulfilled in the 138 statutory notice (a) the subject amount of

dishonoured cheque to be mentioned, (b) the details of Cheque numbers and

date to be provided, (c) returning of Cheque by the banker and the ground to

be mentioned (d) a demand for immediate payment of the amount and (e) a

caution to the noticee that in case of failure, legal proceedings would be

initiated.

10.In this case, all the five conditions, complied. Further, for the

proposition of service of notice, the learned counsel for the Complainant

relied upon the decision of the Hon'ble Apex Court in the case of

K.Baskaran V. Sankaran Vaidhyan Balan reported in (1999) 7 Supreme

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

Court of Cases 510, wherein the Apex Court held that payee has to make

demand by giving notice in writing and it is only for the requirement to

complete the offence or failure of the drawer to pay the cheque amount

within stipulated period. Further referred to paragraph 19 of the said

judgment which is extracted hereunder:

In Black's Law Dictionary, `giving of notice' is distinguished from `receiving of the notice.' (vide page

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.

He further submitted that the interpretation should not be made to help the

dishonest evader and clips an honest payee, which would defeat the purpose

of 138 NI Act. Further, submitted that if the interpretation is otherwise, it

would 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. Hence, the notice taken to the accused

address is sufficient. He further submitted that the points raised by the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

Petitioner are factual in nature, which ought to be decided only during trial

and not in the quash Petition.

11.Considering the rival submissions and on perusal of the

materials, it is seen that the legal notice, issued by the complainants, to the

address of the accused known to them. The notice returned unserved. In

the legal notice, the particulars of the cheque, presentation of the cheque to

the bank, dishonour of cheque and demand for payment clearly mentioned.

The accused having failed to receive the notice missed the opportunity, by

refuting to the statutory notice. Admittedly, the accused had not taken any

positive step to show he had informed his banker about missing of cheque,

issued any notice to the complainants about apprehension of misuse of

cheques available with them or given any complaint to the police in this

regard. Failing to take such steps, now cannot claim that the statutory

notice issued by the complainants is not in compliance of Section 138 (b) of

NI Act. The points raised by the Petitioner are factual in nature, which can

be decided only during trial. Hence, this Court is not inclined to entertain

this Petition.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

12.This Court appreciates the strenuous efforts taken by

Mr.R.Aswin Kumar, learned legal aid counsel appearing for the

complainant, for thorough preparation and his effective argument made on

behalf of the complainants. Finding that the Calendar Case is of the year

2014, the trial Court is directed to complete the trial within a period of three

months from the date of receipt of a copy of this order.

13.In fine, with the above direction, these Criminal Original

Petitions are dismissed. Consequently, connected Miscellaneous Petitions

are closed.

11.10.2022 sai

To The learned Judicial Magistrate – III, Puducherry

https://www.mhc.tn.gov.in/judis Crl.O.P.No.25069 & 28416 of 2015

M.NIRMAL KUMAR, J.

sai

Crl.O.P.No.25069 &28416 of 2015 and Crl.M.P.No.4874 of 2016 and M.P.Nos.1, 1 of 2015

11.10.2022

https://www.mhc.tn.gov.in/judis