Madras High Court
V.Babu vs P.Thiyagarajan on 22 October, 2025
Author: M. Nirmal Kumar
Bench: M. Nirmal Kumar
Crl.A.No.365 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22-10-2025
CORAM
THE HONOURABLE MR JUSTICE M. NIRMAL KUMAR
CRL A No. 365 of 2012
1.V.Babu Appellant(s)
Vs
1.P.Thiyagarajan
S/o.Ponnusamy Mo745, T.N.H.B.,
Taj Nagar, SPB Colony [Post],
Erode-10. ....Respondent(s)
PRAYER: Criminal Appeal filed under Section 378(4) of Cr.P.C. praying to
set aside the judgment passed by Chief Judicial Magistrate, Erode in
C.C.No.158 of 2011 on 23.12.2011 acquitting the respondent/accused from
the charges U/s.138 Negotiable Instruments Act and acquitting them under
Section 255(1) I.P.C and re trial the complaint.
For Appellant : Ms.Harshana.T, Legal-Aid-Counsel
For Respondent :Mr.N.Manokaran
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Crl.A.No.365 of 2012
JUDGMENT
This Court, on 26.09.2025, had passed the following order:
The appellant as complainant filed a private
complaint against the respondent under Section 138 of
the Negotiable Instruments Act in C.C.No.158 of 2011
before the learned Chief Judicial Magistrate, Erode.
The trial Court, by the judgment dated 23.12.2011,
dismissed the complaint, discharged the accused,
against which, the present appeal is filed.
2. The learned counsel for the appellant
submitted that the appellant and the respondent are
known to each other for quiet some time. The
respondent borrowed a sum of Rs.2,00,000/- on
25.02.2007 for urgent family expenses. To discharge
the said liability, the respondent issued the cheque
dated 30.03.2007 drawn on IndusInd Bank, Erode
branch bearing cheque No.070329 for a sum of
Rs.2,00,000/-. On instructions from the respondent, the
cheque was presented on 02.04.2007 and the same was
returned with an endorsement 'Funds Insufficient' on
03.04.2007. The appellant had sent a statutory notice
on 13.04.2007, which was returned on 18.04.2007 with
an endorsement as 'not claimed'. Thereafter, filed the
complaint.
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3.During trial, the appellant examined
himself as PW1 and marked Exs.P1 to P5. On the side
of the defence, three witnesses examined including the
respondent and marked Exs.D1 and D2.
4.The learned counsel for the appellant
submitted that the primary ground on which the
complaint was dismissed is that Ex.P3/statutory notice
was sent on 13.04.2007 and the postal receipt is
marked as Ex.P4 and the returned postal cover is
marked as Ex.P5. In the address portion, there is some
correction in the name and confusion arose as to
whether the addressee is P.Thiyagarajan or
Thangarajan. According to the appellant, it is clear that
in the postal returned cover/Ex.P5 the name of the
respondent written as P.Thiyagarajan, S/o.Ponnusamy
and the postal cover has been returned as not claimed.
But the trial Court took a different view that DW1-
Postman had given evidence that he knew the
accused/respondent for fifteen years and Ex.P3 was
addressed to Thangarajan not Thiyagarajan and some
correction has been made and Ex.P3/notice was not
sent to the correct address. As per Section 27 of
General Clauses Act, it is confirmed once notice has
been taken to the address known to the complainant
and it was despatched, then it has to be presumed that
the complainant had sent notice with due diligence to
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the addressee in proper form. Further submitted that
there is no reason for any such correction referred on
Ex.P3/Notice. In Ex.P3-Notice the respondent name
P.Thiyagarajan, S/o.Ponnusamy, M 745, T.N.H.B., Taj
Nagar, SPB Colony (PO), Erode-10 has been clearly
mentioned. If that is the case, there is no necessity for
any mistake committed in the postal cover. The
respondent created a defence with a known postman
and known persons in his locality and projected as
though notice has not been served. The trial Court not
gone into other facts as to why cheque has been handed
over by the respondent to the appellant/complainant
and no explanation given for the same. When the
respondent not denied the cheque, presumption under
Section 139 of N.I. Act comes into play, which he has
not dislodged except for taking a technical plea.
5.The learned counsel for the
respondent/accused strongly opposed the appellant's
contention submitting that the appellant's contention of
presumption under Section 139 of N.I. Act comes into
play will not be proper. Once the respondent denied the
receipt of notice and the corrections made in the postal
cover and non receipt of notice has been proved by
examining three witnesses including postman and
respondent himself as DW3, the appellant not taken
any steps to refute the probabilities made by the
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respondent. He further referred to the judgment passed
in Crl.A.No.339 of 2010 dated 01.08.2024, wherein
this Court held that in the statutory notice if the name
of the addressee is wrongly mentioned and the postal
cover returned as no such addressee, then it would
confirm that Section 138(b) of N.I. Act not complied.
He further relied upon the judgment in Crl.A.No.806 of
2009 for the same point.
6.At this stage, this Court finds that the
records not received from the Lower Court. A perusal
of the record would clarify as to whether there is any
correction and what was the explanation given by the
respondent by himself and through the other witnesses.
7.In view of the same, the learned Chief
Judicial Magistrate, Erode is directed to submit the
records in C.C.No.158 of 2011 to this Court before
15.10.2025.
8.List the case on 15.10.2025.
2. In continuation and conjunction with the earlier order passed by
this Court on 15.10.2025, and upon perusal of the records, it is observed that
Ex.P5 is the returned postal cover, while Ex.P4 is the postal receipt. The
serial number on the postal receipt is 5558, and the same number is endorsed
on the postal cover, dated 13.04.2007.
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3. Upon examining the postal cover, it is evident that there is some
overwriting and correction in the name of Mr. P. Thiyagarajan,
S/o Ponnusamy, SPB Colony Post, Erode, which appears to have been struck
out. On the reverse side of the cover, there are further markings indicating
"no such person" and thereafter an endorsement of "not claimed."
4. From the evidence of the appellant (P.W.1), it is seen that during
cross-examination, a specific question was posed regarding the correction on
the postal cover, which P.W.1 denied. Furthermore, it was brought out that
the respondent’s father and the appellant’s father were acquainted with each
other and had financial transactions between them. It was during this time
that a cheque was allegedly given as security. The respondent’s father died in
the year 2004. The appellant’s specific case is that the cheque was filled out
in 2005 and the case was filed thereafter.
5. The respondent examined one Mr. Krishnan, the area postman,
who confirmed that he was familiar with delivering letters to the respondent
named P. Thiyagarajan. However, Ex.P5 was addressed to "P. Thangarajan",
and therefore, he was unable to deliver the cover to the intended recipient.
Accordingly, Ex.D1 and the relevant enquiry particulars were submitted by
him.
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6. D.W.2, the Public Relations Officer of the postal department,
confirmed through Ex.D2 that Registered Article No. 5558 was addressed to
one "P. Thangarajan", and due to the name discrepancy, the letter could not
be delivered and was returned. Ex.D2, the enquiry report submitted by the
Public Relations Officer, confirms that Ex.P5 was originally addressed to
"Thangarajan" and not to the respondent, "Thiyagarajan". Hence, it is evident
that Ex.P5 contains a material correction, which has been substantiated by
the respondent. Based on the evidence of D.W.1 and D.W.2, Exs.D1 and D2,
the Trial Court rightly came to conclusion, statutory notice marked as Ex.B5
was not properly addressed and not served and dismissed the complaint.
7. This Court finds no reason to interfere with the judgment of the
Trial Court, which is well-reasoned one. Accordingly, the Criminal Appeal
is dismissed.
22.10.2025
nvi
To
1. Chief Judicial Magistrate, Erode
2.The Public Prosecutor
High Court, Madras.
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M.NIRMAL KUMAR,J.,
nvi
22.10.2025
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