Madras High Court
P. Pichaimuthu vs Mr. D.R. Premchander on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A. No.736 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.736 of 2018
---
P. PichaiMuthu
Rep. By Power Agent Mr. P. Sivamuthu,
At No.407, Suresh Block Chitra Avenue,
No.9, Choolaimedu High Road,
Chennai – 600 094. .. Appellant
Versus
Mr. D.R. Premchander .. Respondent
Criminal Appeal filed under Section 378 of Cr.P.C., praying to call for
the records and set aside the Judgment dated 03.03.2018 passed in C.A. No.
190 of 2016 on the file of the learned XVII Additional Sessions Judge full
additional charge of XVI Additional Sessions Judge, Chennai thereby
reversing the Judgment dated 09.06.2016 passed in C.C. No. 135 of 2007 on
the file of the learned Metropolitan Magistrate, Fast Track Court – III,
Saidapet.
For Appellant : Mr. D. Kanagasundaram
For Respondent : Mr. V. Vijayakumar
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Crl.A. No.736 of 2018
JUDGMENT
This Criminal Appeal had been filed to set aside the Judgment dated
03.03.2018 passed by the learned XVII Additional Sessions Judge, Chennai in
C.A.No.190 of 2016 reversing the Judgment dated 09.06.2016 passed in
C.C.No.135 of 2007 by the learned Metropolitan Magistrate, Fast Track Court
– III, Saidapet.
2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:-
2.1. The Appellant is the Complainant, who had filed the complaint in
C.C.No. 135 of 2007 under Section 138 of The Negotiable Instruments Act,
1881. According to the Appellant, he retired from Government service and
was planning to start a business. At this stage, the Respondent/Accused
approached and requested him to invest in the business of trading packaged
drinking mineral water carried on by him and assured of a reasonable return.
Therefore, a sum of Rs.2,00,000/- was deposited by the Appellant in the
business run by the Respondent and on such deposit, the Appellant was
inducted as a partner. According to the Appellant, the Respondent assured him
of Rs.10,000/- as monthly return which will be paid on or before 10th of every
month. An agreement dated 16.03.2004 was also entered into between the
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Appellant and the Respondent. According to the Appellant/Complainant, until
March 2005, he received the sum of Rs.10,000/- every month from the
Respondent, but thereafter, the Respondent did not pay the amount and
committed default in such monthly payment. Further, the cheques given by the
Respondent to the Appellant were dishonoured on presentation. At this
juncture, the Appellant demanded the Respondent to return back the sum of
Rs.2,00,000/- paid by him. After discussion of the dispute among the
Appellant and the Respondent, a Memorandum of Understanding dated
17.08.2005 was entered into between them in which the Respondent admitted
the default in payment committed by him and issued a cheque No. 312910
dated 06.08.2006 for Rs.2,00,000/- towards the amount deposited by the
Appellant. When the cheque was presented for collection on 30.08.2006 with
the bankers of the Appellant – Indian Overseas Bank, Choolaimedu Branch,
Madras, it was returned as unpaid for the reason 'funds insufficient' and a
return memo dated 31.08.2006 was issued to that effect. In such a
circumstances, the Appellant sent a legal notice dated 27.09.2006 calling upon
the Respondent to pay the cheque amount. However, the Respondent did not
come forward to neither pay the cheque amount nor sent a reply notice.
Therefore, the Appellant has filed C.C. No. 135 of 2007 before the trial court.
2.2. On presentation of the complaint under Section 138 of the
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Negotiable Instruments Act, 1881, the sworn statement of the Complainant
was recorded by the learned Metropolitan Magistrate, Fast Track Court-III,
Saidapet. On perusal of the documents filed by the Complainant the learned
Metropolitan Magistrate concluded that a prima facie case was made out
against the Accused under Section 138 of the Negotiable Instruments Act,
1881. The learned Metropolitan Magistrate therefore took cognisance of the
complaint and numbered it as C.C.No.135 of 2007. Thereafter, summons were
issued to the Accused along with the copy of the complaint under Section 204
of Cr.P.C., The Accused appeared and on his appearance, the learned
Metropolitan Magistrate questioned him regarding the charge under Section
138 of Negotiable Instruments Act, 1881. The Accused denied the charge and
claimed to be tried. Therefore, trial was ordered during which, the
Complainant examined himself as P.W-1 and another witness by name
Umapathy as P.W-2 and the Manager of the Bank was examined as P.W-3. On
appreciation of the evidence, the learned Metropolitan Magistrate had
convicted the Accused/Respondent herein for the offence under Section 138 of
the Negotiable Instruments Act, 1881 and sentenced him to undergo six
months simple imprisonment and to pay the cheque amount as compensation
under Section 255 (2) Cr.P.C.,
2.3. Aggrieved by the Judgment of conviction, the Accused had
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preferred an Appeal in Criminal Appeal No. 190 of 2016 before the learned
Principal Judge, City Civil Court, Chennai. The Appeal was made over to the
file of the learned XVII Additional Sessions Judge, City Civil Court. After
hearing the argument of the learned Counsel for the Appellant as well as the
learned Counsel for the Respondent, the learned XVI Additional Sessions
Judge holding full additional charge of learned XVII Additional Sessions
Judge, by Judgment dated 03.03.2018 allowed the Appeal reversing the
finding of guilt recorded by the learned Metropolitan Magistrate, Fast Track
Court-III, Saidapet in C.C.No.135 of 2007 dated 09.06.2016.
2.4. Assailing the validity and correctness of the Judgment of acquittal
recorded by the learned XVI Additional Sessions Judge holding full additional
charge of learned XVII Additional Sessions Judge, City Civil Court, the
Complainant/Respondent had preferred this Appeal.
3. The learned Counsel for the Appellant submitted that the
Appellant is the Complainant before the learned Metropolitan Magistrate, Fast
Track Court -III, Saidapet. The Appellant/Complainant is a retired Police
Official and as requested by the Respondent/Accused, the
Appellant/Complainant invested Rs.2,00,000/- in the business of package
drinking water carried on by the Respondent/Accused. It is stated by the
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learned Counsel that the Appellant and Respondent are neighbours residing in
adjacent blocks in No.9, Choolaimedu High Road, Chennai – 600 094. The
Complainant is residing in Flat No. 407, Suresh Block, while the Accused
resides in Flat No.101, Anand Block, Chitra Avenue.
4. The XVI Additional Sessions Judge, City Civil Court, on
misconception of law reversed the well considered Judgment of the learned
Metropolitan Magistrate, Fast Track Court-III, Saidapet, based on adverse
presumption as if the cheques were issued towards security by relying upon
the case law which is not at all applicable to the facts of this case.
5. The learned Appellate Judge failed to consider that the statutory
notice dated 27.09.2006 sent by the Complainant was received by the Accused
as could be evident from Ex.P-5 marked through P.W-2. The learned XVII
Additional Judge as Appellate Court had given much importance to the
evidence of P.W-1, whereas on the other hand, P.W-2 who is the Postmaster
who has deposed that the legal notice was served on the Accused on
28.06.2009 and the said evidence was not disputed by the Accused. However,
the appellate Judge concluded that the Accused was not residing in the same
address at the time of service of legal notice was not proper. However, the
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learned Appellate Judge failed to consider the fact that the Accused was served
summons in the C.C. No.135 of 2007 at the same address to which the legal
notice was served. The Judgment of the learned XVII Additional Judge is
against the settled principle of law and is to be set aside as perverse.
6. The learned Appellate Judge also failed to note that as far as the
liability is concerned, it is clearly proved through P.W-1 to P.W-3 that the
cheque was issued towards a legally enforceable debt. The signature in the
cheque was also admitted by the accused. The Appellate Court failed to note
that Ex.P-8 and Ex.P-9 are letters issued by the Accused about the issuance of
cheque. However, the Appellate Court held that the cheque was issued by the
Accused to the Appellant only for security purpose. The Appellate Court
failed to consider that the undertaking letter issued by the Respondent would
show that the cheque was issued towards discharge of past debt. The
Appellate Court erred in stating that as there is an arbitration clause under
Ex.P-7, a private Complaint under Section 138 of the Negotiable Instruments
Act, 1881 is not maintainable.
7. The learned Counsel for the Appellant also submitted that the
Appellant had marked 10 documents and examined three witnesses in support
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of his case. However, the Accused entered appearance and claimed that he had
shifted his residence and the notice was not served. Regarding the service of
notice, P.W-2/Post Master was examined to show the same. Similarly, the
Manager of the Bank was also examined to prove that the cheque issued by the
Respondent was dishonoured for want of funds. Notwithstanding the above
evidence, which clearly prove that the Appellant had raised a strong
presumption in his favour, which was not properly considered by the Appellate
Court while reversing the well considered Judgment of the trial court.
8. The learned Counsel for the Appellant invited the attention of this
Court to the Judgment passed by the learned XVII Additional Sessions Judge,
the relevant portion of it reads as follows:-
“This agreement was made in writing between Accused and
Complainant on 16.03.2004. Till March 2005, the Accused has paid the
monthly share to the Complainant, but subsequently he defaulted in paying
the monthly shre of Rs.10,000/-. Several cheques given by the Accused to the
Complainant's monthly share were bounced due to insufficient funds.
20. As accepted, for the business the said amount was invested by the
Complainant with the condition to give share in the profit at Rs.10,000/- per
month. As accepted by the Complainant, from the profit, Rs.10,000/- was
paid by Appellant only for a few months relating to the deposit of agreement
also entered between the parties. In the said deposit agreement Ex.P-6, it is
stated that the cheques were given only for the purpose of security and any
dispute arise between them the matter to be decided by the Arbitrator
appointed by mutual consent.
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24. As far as this case is concerned, the mandatory requirement is not
complied with. It is the duty of the Respondent/Complainant to prove that
the Appellant/Accused has issued the cheque and it was bounced for want of
sufficient funds. But on perusal of the documents Ex.P-1 to Ex.P-10, it is
evident that all the cheques were issued by the Appellant to the Complainant
only for the security purpose.”
9. By pointing out the above observation, the learned Counsel for
the Appellant invited the attention of this Court to the Appeal preferred by the
Accused before the learned XVII Additional Sessions Judge, City Civil Court
in which he is said to have given two different address and it is a only ploy to
evade the payment by the Accused. The relevant portion of the appeal reads as
follows:-
(i) No.101, Anand Block, Chitra Avenue, No.9
Choolaimedu High Road, Chennai – 600 094.
(ii) G-4, Rams Apartment, Bharathiyar 5th Street,
S.S.Colony, Madurai.
10. Also, the learned Counsel for the Appellant invited the attention
of this Court to the grounds of Appeal in C.A.No.190 of 2016 filed before the
learned Principal Sessions Judge, Chennai. The relevant portion reads as
follows:-
“H) It is submitted that the Respondent filed the additional documents
and the same has been marked as Exhibits No.6 to 10 for misleading before
the learned trial Judge. Because the Appellant neither enter or wrote or
signed in the memorandum of understanding dated 17.08.2005, which has
been marked as Exhibit No.7 and letters dated 02.12.2005, which has been
marked as Exhibit No.8 and letter dated 20.01.2006, which has been marked
as Exhibit No.9 by the Respondent, except the Deposit agreement dated
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16.03.2004, which has been marked as Exhibit No.6 before the learned trial
Judge.
T) the learned Magistrate failed to see that Exhibit 6 & 7 documents
are unregistered one and not according with law laid down in stamp duty
act. But learned Magistrate ought to have taken the above Exhibits for
reasons of conclusion for the Judgment as against the Appellants.
11. The Accused however did not step into the witness box to rebut
the initial presumption raised by the Complainant/Appellant through direct
evidence. Notwithstanding the same, the Appellate Court erroneously
reversed the finding of the learned Metropolitan Magistrate, Fast Track Court-
III, Saidapet and acquitted the Respondent/Accused. In support of his
contentions, the learned Counsel for the Appellant relied on the following
rulings:-
11.1. In the case of C.C.Alavi Haji Vs. Palapetty Muhammed & Anr.
The relevant portion reads as follows:-
“14. Section 27 gives rise to a presumption that service of notice has
been effected when it is sent to the correct address by registered post. In
view of the said presumption, when stating that a notice has been sent by
registered 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 \023refused\024 or
\ 023not available in the house\024 or \023house locked\024 or \023shop
closed\024 or \023addressee not in station \024, due service has to be
presumed. (vide Jagadish Singh Vs. Natthu Singh; State of M.P Vs. Hiralal &
Ors. And V.Raja Kumari Vs. P.Subbarama Naidu & Anr.) It is, therefore,
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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.
15. Insofar as the question of disclosure of necessary particulars with
regard to the issue of notice in terms of proviso (b) of Section 138 of the Act,
in order to enable the Court to draw presumption or inference either under
Section 27 of the G.C.Act or Section 114 of the Evidence Act, is concerned,
there is no material difference between the two provisions. In our opinion,
therefore, when the notice is sent by registered post by correctly addressing
the drawer of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands complied
with.”
11.2. In D.Purushotama Reddy & Anr. Vs. K.Sateesh in Civil Appeal
No.4751 of 2008 (Arising Out of SLP (Civil) No.8520 of 2007, the
Honourable Supreme Court made certain observations, the relevant portion of
which reads as follows:-
“8. Contention of the Respondent, however, is that as the said
question was not and could not have been raised before the trial
Court, the impugned Judgment is sustainable. It was furthermore
urged that in view of the well-settled principle of law that pendency of
a criminal matter would not be an impediment in proceeding with a
civil suit, the impugned Judgment should not be interfered with.
9. A Suit for recovery of money due from a borrower
indisputably is maintainable at the instance of the creditor. It is
furthermore beyond any doubt or dispute that for the same cause of
action a complaint petition under terms of Section 138 of the Act
would also be maintainable.”
11.3. In the case of Kishan Rao Vs. Shankargouda in Criminal
Appeal No.803 of 2018 (Arising out of SLP (Crl.) No.10030 of 2016, relevant
portion reads as follows:-
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“6. Learned Counsel for the Appellant submits that the
offence having been proved before the trial Court by leading evidence,
the conviction was recorded by the trial Court after appreciating both
oral and documentary evidence led by the Appellant which order was
also affirmed by the Appellate Court. There was no jurisdiction in the
High Court to re-appreciate the evidence on record and come to the
conclusion that Accused has been able to raise a doubt regarding
existence of the debt or liability of the Accused. He submits that the
High Court in exercise of jurisdiction under Section 379 r/w. 401
Cr.P.C., can interfere with the Order of the Conviction only when the
findings recorded by the Courts below are perverse and there was no
evidence to prove the offence against the Accused. It is submitted that
in exercise of the revisional jurisdiction the High Court cannot
substitute its own opinion after re-appreciation of evidence.
7. It is submitted that the presumption under Section 139 was
rightly drawn against the Accused and Accused failed to rebut the said
presumption by leading evidence. There was no ground for setting
aside the Conviction Order.
19. This Court held that the Accused may adduce evidence to
rebut the presumption, but mere denial regarding existence of debt
shall not serve any purpose. Following was held in Paragraph 20:
20......... The Accused may adduce direct evidence to prove that
the note in question was not supported by consideration and that there
was no debt or liability to be discharged by him. However, the Court
need not insist in every case that the Accused should disprove the non-
existence of consideration and debt by leading direct evidence because
the existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare denial of the
passing of the consequences and existence of debt, apparently would
not serve the purpose of the Accused. Something which is probable
has to be brought on record for getting the burden of proof shifted to
the Complainant. To disprove the presumptions, the Accused should
bring on record such facts and circumstances, upon consideration of
which, the Court may either believe that the consideration and debt
did not exist or their non-existence was so probable that a prudent
man would under the circumstances of the case, act upon the plea that
they did not exist.......”
22. No evidence was led by the Accused. The defence taken in
the reply to the notice that cheque was stolen having been rejected by
the two Courts below, we do not see any basis for the High Court
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coming to the conclusion that the Accused has been successful in
creating doubt in the mind of the Court with regard to the existence of
the debt or liability. How the presumption under Section 139 can be
rebutted on the evidence of P.W-1, himself has not been explained by
the High Court.”
11.4. In the case of Sunil Todi & Ors. Vs. State of Gujarat & Anr in
Criminal Appeal No.1446 of 2021 wherein it was held as follows:-
“17. The issues which arise for our consideration are as
follows:-
(i) Whether the dishonor of a cheque furnished as a 'security' is
covered under the Provisions of Section 138 of the Negotiable
Instruments Act;
(ii) Whether the Magistrate, in view of Section 202 Cr.P.C.,
ought to have postponed the issuance of process; and
(iii) Whether a prima facie case of vicarious liability is made
out against the Appellants.
25. The explanation to Section 138 of the NI Act provides that
'debt or any other liability' means a legally enforceable debt or other
liability. The proviso to Section 138 stipulates that the cheque must
be presented to the Bank within a period of six months from the date
on which it is drawn or within its period of validity. Therefore, a
cheque given as a gift and not for the satisfaction of a debt or other
liability, would not attract the penal consequences of the Provision in
the event of its being returned for insufficiency of funds.
30. The submission which has been urged on behalf of the
Appellants, however, is that the fact that the cheques in the present
case have been issued as a security is not in dispute since it stands
admitted from the pleading of the second Respondent in the Suit
instituted before the High Court of Madras.”
12. By placing reliance on the above decisions, the learned counsel
for the Appellant-Complainant submits that the Respondent/Accused did not
step into the witness box and disproved the case projected by the Complainant.
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That therefore, the Judgment passed by the learned XVII Additional Sessions
Judge, City Civil Court, reversing the well considered Judgment of conviction
passed by the Trial Court, is to be set aside as perverse.
13. Per contra, the learned Counsel for the Respondent submitted that
on considering the business reputation of the Respondent, the Appellant
approached him and expressed his intention to invest amount in the business
run by him. In this context, an agreement dated 16.03.2014 was entered into
between the Appellant and the Respondent. However, in the Complaint, the
Appellant stated that the Respondent approached and asked the Appellant to
invest in his business. But in his cross-examination, he had clearly stated that
vjpupia vdf;F ed;whf bjupa[k; vd;Wk; ehdhfj;jhd; vjpupia miHj;J me;j
bjhHpypy; nru ntz;o gzk; nghLtjhf brhy;yp gzk; bfhLj;njd;/ Thus, it could
be evident that the Appellant's testimony is contradictory to what has been
stated in his Complaint.
14. The learned Counsel for the Respondent also invited the attention
of this Court to the cross-examination of P.W-1 wherein he has stated that he
gave the money to the Respondent in cash partially and other amount by way
of cheque. But the date and time of the issuance of the cheque also was not
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mentioned in the Complaint as well as in the Proof Affidavit. The relevant
portion reads as follows:-
vjpupapd; bjhHpypy; g';Fjhuuhf nruntz;oa gzk;
bfhLj;jnghJ xU Kiw buhf;fkhft[k; xU Kiw fhnrhiyahft[k;
bfhLj;jjhf “hgfk;/ vjpup bra;J te;j bjhHpypy; KjyPL
bra;tjw;fhf me;j tHf;F fhnrhiyia brf;a{uplo; f;fhf
bfhLj;jjhuh vd;why; fhnrhiy bfhLj;jhuh ,y;iyah vd;W
"hgfkpyi; y/”
15. The learned Counsel for the Respondent/Accused also submitted
that the Appellant in the Complaint has stated that the Respondent has not paid
the profit of Rs.10,000/- for each month and many cheques given by the
Respondent were bounced due to “insufficient funds”. From this averment, it
is clear that the Respondent gave many cheques only for security purpose. On
several occasions, the Respondent issued cheques for Rs.2,00,000/- which
were also returned to him. The Appellant was in the habit of getting new
cheques from the Respondent returning the old cheques to him. These cheques
were issued only for security purpose. Even otherwise, the Respondent has
settled the entire amount of Rs.2,00,000/- deposited by the Appellant by way
of installments. But the Appellant demanded interest for the above said
deposit amount. It is in this context, a dispute arose between them which led
to the filing of the present complaint. The Respondent never gave any
instruction to present the cheque, but the Appellant wantonly presented the
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cheques to harass the Respondent through the Criminal proceedings.
16. The learned Counsel for the Respondent submitted that at the time
of examination-in-chief of the Appellant he has stated that notice was not
served to the Respondent. When a suggestion was made as to whether the
Appellant is aware that the Respondent vacated the house from the above said
address which was mentioned in the cause title of the Complaint and settled in
his native place of Madurai, he did not raise any objection to the same. The
Appellant never gave two months notice to the Respondent to refund the
amount nor came forward to resolve the dispute before the Arbitrator as per the
terms and conditions of the agreement dated 16.03.2004. Therefore, the act of
the Appellant clearly reveals that there is no enforceable debt against the
Respondent.
17. The learned Counsel for the Respondent further submitted that
notice and summons were not properly served on him and they were served
only to the Chennai address which the Respondent had vacated. When the
Respondent entered appearance in this case through his counsel, he came to
know that the security cheque given by him was presented by the Appellant
with an ulterior motive. The Appellant failed to establish that the cheque was
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issued for discharge of a legally enforceable debt or liability, either in whole or
in part through legally acceptable evidence.The Appellant filed the Complaint
before the learned trial Judge even though he did not have a valid proof of
service to show that the above said notice had been served on the Accused. In
this regard, the learned counsel invited the attention of this Court to the
deposition of the Appellant during his cross-examination, wherein he has
deposed as follows:-
“2006 Mk; Mz;oy; vjpup brd;idapy; ,Ue;J btspnawp jdJ
brhe;j Cuhd kJiuf;F brd;W m';F Fonawptpll; hu; vd;W brhd;dhy;
vdf;F bjupahknyna vjpup ,unthL ,uthf fhyp bra;J bfhz;L brd;W
tpll; hu;/ vjpup brd;idapy; cs;s tPl;il thliff;F tplL ; brd;whbud;why;
vjpupaplk; gzk; bgw ntz;oa egu; me;j tPl;il Mf;fpukpgg; [ bra;J
bfhz;lhu;/
th/rh/3 mwptpg;g[ vjpupapd; ve;j Kftupf;F ehd; mDg;gpndd; vd;why;
vjpupapd; Kftupna vdf;F bjupahJ/ gpwF ve;j KftupfF ; ehd;
mDg;g[ntd;/
th/rh/5y; vjpupjhd; me;j mwptpg;ig bgw;Wf;bfhz;lhuh vd;W ve;j
thrfKk; ,lk; bgwtpyi ; y vd;why; vjpupjhd; me;j mwptpgi
; g mDg;gt[ jw;F
Kd;ng tPl;il fhyp bra;J ngha;tpll; hu;/ mjdhy; me;j mwptpg;g[
bjupahky; ,Ue;jpUf;fyhk;/”
18. Further, the Postmaster was examined as P.W-2. In his cross-
examination he stated that th/rh/5 ftu; cs;ns vd;d Mtzk; itj;J
mDg;gg;gl;lJ vd;gij gw;wp vdf;F bjupahJ/ vd;Dila Kjy; tprhuizapd; nghJ
28/09/2006,y; blyptup bra;ag;gl;lJ vd;W brhd;dhy; cs;ns mJ tHf;fwp"u;
mwptpg;g[ jhndh vd;gJ gw;wp vdf;F bjupahJ/ th/rh/5 Mtzj;jpy; ahu; ve;j
fojj;ij bgw;W bfhz;lhu; vd;gJ gw;wp tptuk; ,y;iy/ The Appellant/
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Complainant also in his evidence stated that the legal notice sent by post was
not delivered since the Respondent had already vacated the house. But the
Postmaster/P.W-2, in his evidence, along with covering letter dated
09.11.2006, stated that the item was delivered on 28.09.2006 but was not
stated by P.W-2 as to whom the item was delivered. Hence it is clear that the
notice has not been delivered to the Respondent and there were contradictory
testimonies of P.W-1 and P.W-2.
19. The learned Counsel for the Respondent invited the attention of
this Court to Section 138 of the Negotiable Instruments Act, 1881 which reads
as follows:-
“Dishonour of cheque for insufficiency of funds in the account
etc.,-
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the
holder in due course of the cheque, within fifteen days of the receipt of
the said notice.”
20. The learned Counsel for the Respondent also invited the attention
of this Court to Section 142 of the Negotiable Instruments Act, 1881 which
reads as follows:-
“142. Cognizance of offences, -- (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no Court shall take cognizance of any offence punishable
under Section 138 except upon a Complaint, in writing, made by the
payee or, as the case may be, the holder in due course of the cheque;
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(b) such Complaint is made within one month of the date on
which the cause of action arises under Clause (c) of the proviso to
Section 138;
(c) no Court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence punishable
under Section 138”.
21. The learned Counsel for the Respondent/Accused submitted that
on an analysis of the aforesaid two Sections, for making out a case under
Section 138 of the Negotiable Instruments Act, 1881 the following ingredients
have to be made out and they are:-
“(i) the payee of the cheque in case of non-payment of the
cheque is required to sent notice within thirty days in writing to the
drawer of the cheque from the date of receipt of information about the
non-payment demanding the amount of cheque,
(ii) the drawer fails to make payment of the amount within
fifteen days from the date of receipt of the notice, there would be a
case under Section 138 of the Negotiable Instruments Act provided the
action is taken for cognizance of the offence as provided under Section
142 of the said Act.”
22. According to the learned counsel for the Respondent, a legal
notice under Section 138 (b) of the said Act was sent by the Appellant to the
Respondent through registered post on 27.09.2006. However, there is no
evidence or acknowledgment card of the Post Office to show that the said legal
notice dated 27.09.2006 was ever served personally on the Respondent. While
so, the question of the Respondent/Accused failing to pay the cheque amount
even after 15 days of the receipt of the notice as contemplated under Section
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138 (b) of the Act will not arise in this case. In order to fasten the criminal
liability on a person, the requirement of law has to be fully complied with. In
the present case, it has not been shown that the notice of demand, as required
under Section 138 (b) of the Act, was served on the Respondent. The reply of
Postal Department is marked as Ex.P-5 before the trial Court, showing the
status that article was delivered, but not on the Respondent. In the absence of
service of notice under Section 138 (b) of the Act, no Prosecution and
cognizance of offence is permitted to be taken against the
Respondent/Accused as held in the Judgment reported in the case of Rajiv
Kumar Vs. State of U.P reported in AlR 1991 Cri.L.J. 3010. In this case,
when the Appellant failed to establish that the notice dated 27.09.2006 was
served on the Respondent before the trial Court, the Judgment of conviction
passed by the Trial Court is perverse.
23. The learned counsel for the Respondent also invited the attention
of this Court to the additional documents filed by the Appellant before the trial
Court as Ex.P-6 to Ex.P-10. The signature in the deposit agreement under
Ex.P-6 varies from Ex.P-7 to Ex.P-9. In Ex.P-8 and Ex.P-9, the Respondent's
sign is depicted as “R. Premchander” whereas the Appellant normally signs as
“D.R. Premchander” which is reflected in Ex.P-6. Further, Ex.P-6 and Ex.P-7
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are unregistered documents which were not in accordance with law under the
Stamp Act and therefore, they are legally not admissible. Further, Ex.P-6-
Deposit Agreement dated 16.03.2004 reveals that the said cheque was issued
for security purpose and not for discharge of a legally enforceable debt or
liability.
24. In support of his contention, the learned Counsel appearing for the
Respondent/Accused relied on the following rulings:-
24.1. In the case of M/s.Harman Electronics (p) Limited and another
Vs. M/s. National Panasonic India Limited reported in (2009) 1 SCC 720.
The relevant portion reads as follows:-
“20. Indisputably all status deserve their strict application, but while
doing so the cardinal principles therefore cannot be lost sight of. A Court
derives a jurisdiction only when the cause of action arose within his
jurisdiction. The same cannot be conferred by an act of omission or
commission on the part of the Accused. A distinction must also be borne in
mind between the ingredients of an offence and commission of a part of the
offence. While issuance of a notice by holder of a Negotiable Instrument is
necessary, service thereof is also imperative. Only on service of such notice
and failure on the part of the Accused to pay the demanded amount within a
period of 15 days thereafter. The commission of an offence completes.
Giving of notice, therefore, cannot have any precedent over the service. It is
only from that view of the matter that Dalmia Cement (Bharat) Ltd., Vs.
Galaxy Traders & Agencies Ltd., emphasis had laid on service of notice.”
24.2. In the case of Sarav Investment & Financial Consultancy
Private Limited and Another Vs. Llyods, Register of Shipping reported in
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2007 14 SCC 753 it was held as follows:-
“23. Submission of the learned Counsel for the Respondent in regard
to the conduct of the Appellant is besides the point. The allegations made in
Complaint Petition, if did not subserve the requirements of law were not
maintainable and, thus, the same could not have been entertained. Proper
application of mind was necessary in that behalf by the learned Magistrate.
The learned Magistrate proceeded on the basis that the service of notice
upon the Company at its registered Officer would subserve the requirements
of law. But, in this case, point taken by the Appellant is a different one.”
24.3. In K.N.Kandasamy Gounder Vs. P.Dhamodharan reported in
2009-2-L.W (Crl.) 1275 the following observations are made which reads as
follows:-
“14. Section 138 of the Negotiable Instruments Act provides for a
penal provision. Such a penal provision enacted in terms of the legal fiction
drawn would be attracted and when a cheque is returned by the Bank
unpaid. Before a proceeding thereunder is initiated, all the legal
requirements therefor must be complied with. The Court before whom a
private Complaint is filed has to be satisfied with all the ingredients of the
Commission of offence under the provisions have been complied with.”
25. By pointing out the above decisions, the learned counsel for the
Respondent/Accused submitted that the cheque in question was not issued for
a legally enforceable debt and liability. The statutory notice was not served on
the Respondent/Accused, whereby the Appellant-Complainant has failed to
comply with the mandatory requirements under The Negotiable Instruments
Act. Furthermore, as an accused, he can maintain stoic silence and he need not
examine himself to rebut the initial presumptions raised. One of the methods
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for rebutting the initial presumption is to cross-examine the witnesses
examined on the side of the Complainant. In this case, through the cross-
examination of the witnesses examined on the side of the Appellant-
Complainant, the Respondent/Accused has rebutted the initial presumption.
The Appellate Court, on an in-depth analysis of the entire evidence on record,
has acquitted the Respondent/Accused. The Appellate Court, as a fact finding
Court, acquitted the Respondent/Accused and it need not be interfered with by
this Court as a second appellate Court to tweak into the facts and evidences
involved. This Court can only examine as to whether the Judgment of reversal
of the Appellate Court is based on sound reasoning and in the light of the
material evidence recorded before the Trial Court. Even if two views are
possible, the one which is in favour of the Respondent/Accused can always be
considered to confirm the Judgment of acquittal passed by the Appellate Court.
Accordingly, the learned counsel for the Respondent/Accused prayed for
dismissal of this appeal.
Point for consideration:-
Whether the Judgment passed by the learned XVII
Additional Sessions Judge, Chennai in C.A.No.190 of 2016
dated 03.03.2018 thereby reversing the Judgment passed by the
learned Metropolitan Magistrate, Fast Track Court – III,
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Saidapet in C.C.No.135 of 2007 dated 09.06.2016 is to be set
aside as perverse?
26. Heard the learned Counsel for the Appellant and the learned
Counsel for the Respondent. Perused the records, including the Judgment
passed by the learned Metropolitan Magistrate, Fast Track Court-III, Saidapet
and the Judgment passed by the learned XVII Additional Sessions Judge,
Chennai.
27. On perusal of the Judgment of the learned XVII Additional Judge,
City Civil Court, it is found that the learned Sessions Judge failed to consider
the fact that the evidence of the Complainant is to the effect that the
whereabouts of the Accused were not known. However, he claimed in the
complaint that service of notice on the Accused could not be completed as per
the provisions of Sections 138 to 142 of the Negotiable Instruments Act. At the
same time, the summons sent to the Accused as per the Complaint was served
and the Accused appeared. Therefore, it gives a presumption that the
Complainant had filed the complaint properly by following the due procedure.
When the Accused wantonly evaded the statutory notice, the learned Judge had
recorded that it was deemed that service was effected on the
Respondent/Accused. Further, as per the ruling of the Hon'ble Supreme Court
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in the case of K.Bhaskaran Vs. Sankaran Vaidhyan Balan and another
reported in AIR 1999 Supreme Court 3762, the parties who evaded the notice
wantonly to avoid being arrested or for the purpose of filing complaint are
risking imprisonment. Therefore, when the statutory notice contains the details
of the address of the Accused and the summon also bears the same address, the
presumption is that the Respondent/Accused evaded the statutory notice for
obvious reasons. Under those circumstances, the arguments of the learned
Counsel for the Respondent in this Appeal that there is no cause of action at all
arisen for filing the complaint as the statutory notice was not served cannot be
accepted. When the Accused appeared before the Trial Court on receipt of
summons along with a copy of the Complaint, then the Accused should have
raised the question of maintainability of the complaint under Section 138 of
the Negotiable Instruments Act for not properly serving the statutory notice.
The Respondent/Accused did not do so as the statutory notice was duly sent
and the Complainant also examined P.W-2/Postmaster to show that the notice
was duly served. At that stage, the Court shall order notice and help the
Accused to offer his explanation for not receiving the notice and also to
explore his readiness to settle the amount, opportunities shall be given. Here,
the Accused appeared but he has not properly explained as to how the
summons sent through the Court to the same address has been received by
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him. When the accused disputes the receipt of statutory notice, it is his duty to
disprove it through legally acceptable evidence, but he had not done so.
Therefore, it is clear that the Respondent/Accused was aware of the Complaint
to be filed against him.
28. In cases of this nature, when the Accused was not served with
notice or the Accused offered his explanation before the Court regarding the
service of notice, the Accused shall be given an opportunity to prove the same.
Even sufficient time to respond to the notice would have been given to the
Accused but he had not raised such issue. If the argument of the learned
Counsel for the Appellant is considered, then the private Complaint cannot
proceed till the time is exhausted from the date of appearance of the Accused
either to interact with the Complainant or to close the case or to try the case
within a specified time. The Accused had not availed such chances and he is
duty-bound to explain how he received notice in the complaint. If the address
was wrong, summons to the Accused would have returned, unserved. But in
this case, the Accused entered appearance through his Counsel and contested
the case after receipt of summons from the trial court. Therefore, as per the
reported decision of the Hon'ble Supreme Court in the case of K.Bhaskaran
Vs. Sankaran Vaidhyan Balan and another reported in AIR 1999 Supreme
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Court 3762, it is a deemed service where the Accused received the notice sent
through the Court. The Accused could have very well sought time to either
settle the dues or to pronounce Judgment based on merits. But the Accused had
not done so. The learned Metropolitan Magistrate, Fast Track Court-III,
Saidapet had considered those circumstances and rejected the contention of the
learned Counsel for the Accused that there was no cause of action to file the
Complaint, while convicting him. However, the learned XVII Additional
Sessions Judge failed to consider this particular aspect. If the address shown
in the complaint was false, how did the Accused came to know about the
proceedings, entered appearance through Counsel and contested the case. This
was not properly explained by the Accused.
29. When the Accused had not denied the signature in the unfilled
cheque, it is treated as a bill of exchange thereby giving authorisation to the
person to whom the cheque was handed over, to fill up the cheque and hand
over the filled cheque to the holder of the cheque. Thus, even assuming that
the cheque was unfilled but only signed, it duly authorise the holder to fill it
up. Therefore, the Respondent/Accused cannot claim that the cheque in
question is a self created document. The claim of the Accused that the private
complaint is not at all maintainable as there is an arbitration clause in the
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agreement is also not acceptable. If the agreement is insisted upon by the
Accused, the Accused ought to have mentioned the name of the arbitrator to
whom the matter is to be referred. When he received summons and appeared
before the Court in the usual course, cause of action arises for entertaining the
complaint. In any event, the Complainant issued statutory notice immediately
after the cheque issued by the Respondent/Accused bounced. Therefore, after
receipt of notice within 15 days, the accused should make arrangements for the
amount covered in the cheque or seek time to pay the same within a specified
period. In the absence of the same, the Complainant filed the complaint within
the period specified under the Act.
30. During trial, the Respondent/Accused had not pleaded that as per
the clause in the agreement between the Accused and Complainant, the
dispute, if any, has to be referred to arbitration. The Respondent/Accused
ought to have pressed for such a relief at the first instance. In this case, on the
date of appearance before the learned Metropolitan Magistrate, Fast Track
Court-III, Saidapet, the Respondent/Accused only claimed that he had not
received the statutory notice before filing the Complaint and therefore, he was
prejudiced in not being able to give reply to the statutory notice. If that is the
defence, he ought to have on his first appearance before the Court, made a
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mention and sought time for his response, before proceeding with the trial in
the Court. In cases where the Accused evaded notice but appeared on service
of summons, the Accused himself or herself has to invoke such a right to reply
to the statutory notice by seeking time. In this case, without doing so,
allowing the Court to proceed with the trial and then claimed that the learned
trial Judge before taking cognizance of the offence failed to consider that there
is no cause of action, in this case, for filing of a complaint as the statutory
notice was not served on the Accused does not arise. Therefore, the plea of the
Respondent/Accused that his valuable right to reply and respond to the
statutory notice was lost cannot at all be accepted.
31. The learned Counsel appearing for the Accused cross-examined
P.W-1 regarding the non-availability of the Accused in the address mentioned
in the statutory notice for which the Complainant answered that the Accused
had shifted his residence and his whereabouts are not known. Whereas on
receipt of the summon sent to the Accused from the Court, he appeared and it
shows that the answers given by the Complainant, as PW1, alone was
considered by the Appellate Judge instead of considering the fact that the
Accused had entered appearance, contested the case and now come up before
the learned Appellate Judge seeking to set aside the Judgment of Conviction
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on technicalities of law.
32. The Accused cannot be permitted to take advantage of his own
wrong. The learned XVII Additional Sessions Judge, City Civil Court had
reversed the finding of guilt recorded by the learned Metropolitan Magistrate,
Fast Track Court-III on the ground that the statutory notice issued by the
Complainant before lodging the Complaint was not served on the Accused as
per the provision of the Sections 142 of the Negotiable Instruments Act. Here,
it is the contention of the learned Counsel for the Respondent that cognizance
taken by the learned Metropolitan Magistrate is not proper as per the definition
under Section 142 of the Negotiable Instruments Act. The said argument of the
learned Counsel for the Respondent cannot at all be accepted. The Accused is
aware that the cheques given by him had bounced and returned for insufficient
funds. Being neighbours residing within the same compound in different
blocks in different flats, the Complainant had informed the Accused of the
same. Therefore, he was aware of every likelihood of the Complainant
proceeding with a private complaint under Section 138 of the Negotiable
Instruments Act. However, he had wantonly avoided receiving statutory notice
from the Complainant.
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33. In the cross-examination of the Complainant as P.W-1 it was
suggested that the notice was not served on the Accused to which the
Complainant replied that notice was not served as he had evaded notice. That
is why, he had examined the Post-Master for proper service. Further, P.W-1
stated that he did not know the whereabouts of the Accused as he had shifted
his residence. Only in the Appeal, the learned Counsel for the Accused states
that the Accused shifted to Madurai/his native place, without informing the
Complainant. The Accused having shifted from Chennai to Madurai indicates
that he had cleverly avoided receipt of the notice. In cases of this nature, when
the Accused was unable to respond to the notice but appeared through counsel
before the Court, then it is the duty of the Accused to claim that the notice was
not served on him and seek time to respond to the notice. In such cases, the
learned Metropolitan Magistrate is duty bound to grant 15 days time as per
Section 142 of the Negotiable Instruments Act. On that score, the entire
Judgment of the learned Metropolitan Magistrate, Fast Track Court cannot be
set aside.
34. In cases of this nature, the Accused is very clever enough to act
knowing the consequences of issuing cheques. The accused adopted all
methods to defeat the purpose of the Parliamentary intent in enacting an
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amendment to Section 138 of the Negotiable Instruments Act. As per the
Judgment of the Hon'ble Supreme Court in the case of K. Bhaskaran Vs.
Sankaran Vaidhyan Balan and another reported in AIR 1999 Supreme
Court 3762 the Accused in cases of this nature tend to defeat the purpose of
filing the Complaint. Such an Accused cannot be permitted to take advantage
of his own wrong. Here, after the cheque was bounced, the Accused came to
know about it and sought replacement with a new cheque. Still, he had not
made arrangements for honouring the cheque from his Bank. Under those
circumstances, the conduct of the Accused also has to be analysed from the
facts and circumstances of this case. The Appellate Court was carried away by
the arguments of the learned Counsel for the Appellant/Accused and had not
analysed the conduct of the Accused before the learned Metropolitan
Magistrate, Fast Track Court-III, Saidapet.
35. The rulings cited by the learned Counsel for the Respondent
before this Court will not help his case. The conduct of the Accused is found
condemnable in evading the due process of law when he claims that the
address given in the statutory notice is his previous address and he had filed
vakalat through Counsel wherein the address mentioned is the same. Also, in
the Appeal ground before the learned XVII Additional Sessions Judge, he had
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mentioned the same address and not the address given in Madurai. The
address in the Appeal is same as stated by the Complainant before the learned
Metropolitan Magistrate, Fast Track Court-III, Saidapet. However, the learned
XVII Additional Sessions Judge, City Civil Court failed to consider those
aspects and was carried away by the argument of the learned Counsel for the
Appellant/Accused that the cause of action had not arisen as per Section 142
of the Negotiable Instruments Act. Therefore, the Judgment of the Appellate
Court is found perverse in the light of the provisions of Section 138 of the
Negotiable Instruments Act as well as the facts and circumstances arising from
this case.
36. The Accused is alleged to have made representation to his
neighbour a retired Police Official to invest money in his business of package
drinking water and entered into an agreement according to which the
complainant is to invest a sum of Rs.2,00,000/- and in return the Accused
agreed to pay Rs.10,000/- per month to the Complainant. He had also entered
into a Memorandum of Understanding claiming that when dispute arises, an
arbitrator is to be appointed. Here, a dispute arose. Before proceeding with the
complaint, he had shifted his residence without informing the Complainant.
Therefore, he cannot be permitted to take shelter under the Memorandum Of
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Understanding between the Complainant and the Accused to refer the dispute
to arbitration. If that was the case, he had time before the learned Metropolitan
Magistrate, Fast Track Court-III, Saidapet before whom he entered appearance
through Counsel. If what had been stated by the Accused was true that notice
was not served on him, he should be given a chance to respond to the notice.
The date of appearance on summons before the learned Metropolitan
Magistrate, Fast Track Court-III is to be treated as notice served. Then, it is
for him to seek time to respond to the notice making a mention to the learned
Metropolitan Magistrate. If he insisted on an appointment of Arbitrator as per
the Memorandum of Understanding between him and the Complainant, he
should have verified with the Complainant and his Counsel and sought
appointment of an Arbitrator as per the Memorandum Of Understanding
between them. He did not adopt those methods before commencement of trial.
After suffering a conviction, when he approached the Appellate Court with an
Appeal, at least before the Appellate Court, he should have made a mention to
refer the dispute to arbitration. He had not done so before the Appellate Court
also. His only attempt was to defeat the purpose of Section 138 of the
Negotiable Instruments Act. Therefore, he cannot be heard to claim that the
complaint itself is not maintainable as there is no cause of action. The
Judgment of the learned XVII Additional Sessions Judge, City Civil Court
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reversing the finding of guilt recorded by the learned Metropolitan Magistrate,
Fast Track Court is therefore found to be perverse and it is liable to be set
aside.
37. In the light of the above discussions, the Point for Consideration
is answered in favour of the Complainant/Appellant and against the
Respondent/Accused before this Court. The Judgment of acquittal dated
03.03.2018 recorded by the learned XVI Additional Sessions Judge holding
full additional charge of the learned XVII Additional Sessions Judge, City
Civil Court in C.A.No.190 of 2016 is found perverse and the same is to be set
aside and the Judgment of conviction recorded by the learned Metropolitan
Magistrate, Fast Track Court – III, Saidapet, in C.C.No.135 of 2007, dated
09.06.2016 is to be restored.
In the result, this Criminal Appeal is allowed. The Judgment of
acquittal dated 03.03.2018 recorded by the learned XVI Additional Sessions
Judge holding full additional charge of the learned XVII Additional Sessions
Judge, City Civil Court in C.A.No.190 of 2016 is set aside and the Judgment
of Conviction recorded by the learned Metropolitan Magistrate, Fast Track
Court – III, Saidapet, in C.C.No.135 of 2007, dated 09.06.2016 is restored.
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The learned Metropolitan Magistrate, Fast Track Court – III, Saidapet is
directed to issue warrant in continuation of Judgment recorded by the learned
Metropolitan Magistrate, to secure the Accused. The Complainant is within
his discretion to take action to recover the sum of Rs.2,00,000/- through filing
Execution Petition before the City Civil Court or filing such application before
the learned Metropolitan Magistrate, Fast Track Court as per law.
02.06.2025
dh
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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To
1. The Metropolitan Magistrate,
Fast Track Court – III,
Saidapet.
2. The XVII Additional Sessions Judge,
City Civil Court, Chennai.
3. The Section Officer,
Criminal Section,
High Court Madras.
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SATHI KUMAR SUKUMARA KURUP, J
dh
Judgment made in
02.06.2025
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