THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Criminal Appeal No. 899 of 2005
A.Lakshmanan .. Appellant Vs R. Velumani .. Respondent Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, to call for the records in C.A.No.160 of 2004 on the file of the learned Additional District Judge, Fast Track Court No.I, Coimbatore and set aside the order of acquittal in reversing the Order of conviction made in C.C.No.107 of 2000 dated 26.03.2004 on the file of the learned Judicial Magistrate No.III, Coimbatore.
For Appellant : Mr.A.V. Somasundaram For Respondent : Mr.C.Deivasigamani
JUDGEMENT
This appeal has been filed by the appellant/complainant against the order of acquittal passed in a private complaint filed under section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant case is as follows:
The respondent/accused borrowed a sum of Rs.1,66,000/- (Rupees One Lakh Sixty Six Thousand Only) from the appellant and promised to repay the same with 24% interest, in order to discharge the liability, in the month of November 1999, the respondent issued a cheque dated 24.12.1999, and informed the complainant to present the same in the month of January 2000. On 28.02.2000, the appellant presented the cheque and the same was returned, on account of insufficient funds. Thereafter, the appellant sent legal notice to the respondent through registered post and also through certificate of posting. The registered post has been returned, as insufficient address. Since, the respondent also failed to repay the amount, the appellant/complainant filed a private complaint Under section 138 of Negotiable Instruments Act.
3. At first, the trial Court convicted the accused holding that the appellant has proved the charge by sufficient evidence. Challenging the http://www.judis.nica.inbove said conviction, the accused had filed an appeal in C.A.No.160 of 2004. The lower Appellate Court acquitted the respondent/accused stating that, after return of cheque, the appellant sent a legal notice to the respondent, by registered post as well as certificate of posting. The registered post has been returned as unserved on the ground that the address of the respondent is insufficient. In the above circumstances, since the notice was not served on the respondent, there is no opportunity for him to repay the amount, hence, the offence Under section 138 of Negotiable Instruments Act has not been made out and acquitted the accused. Challenging the same, the present appeal has been filed.
4. The learned counsel appearing for the appellant contented that the registered post has been addressed to the respondent to the last known address duly, stamped, hence there is a presumption Under section 27 of General Clauses Act, the registered post has been duly served on. Apart from that the petitioner also sent a notice through certificate of posting which has been marked as Ex.P.6, since the notice duly served on the respondent, the lower Appellate Court without considering the material records in proper perspective, acquitted the accused only on the ground that the notice was not served on him, which is erroneous.
5. The learned counsel appearing for the respondent would submit that, as per pro-note said to have been executed by the respondent, which is marked as Ex.P.1, wherein the address of the respondent is given as, R.Velumani, S/o.Ramasamy, Door No.20, Ranganathapuram, Uppilipalayam Post, Coimbatore Taluk, Coimbatore District, but the notice has been deliberately sent to the respondent through the registered post to some other address, namely The Proprietor, Prabhu Foundary, Thamarai Nagar, (Near Dhandapani Children's Clinic), SIHS Colony, Aerodrome, Coimbatore.
Hence, the address is totally different and absolutely there is no material available on record to show that the notice has been served on the respondent.
6. In such circumstances, it is clear that the respondent has not served with any notice. Even in the certificate of posting, the same address has been given. Considering all the above materials, the trial Court rightly acquitted the accused.
7. I have considered rival submission and perused the records carefully.
8. On a perusal of the records, it is seen that the registered post demanding payment of money sent to the Proprietor, Prabhu Foundary, Thamarai Nagar, (Near Dhandapani Children's Clinic), SIHS Colony, Aerodrome, Coimbatore. But in the Ex.P1, the pro-note which has been executed by the respondent, the accused/respondent address is given as follows:
R.Velumani, S/o.Ramasamy, Door No.20, Ranganathapuram, Uppilipalayam Post, Coimbatore Taluk, Coimbatore District.
Now, the main contention of the learned counsel for the respondent is that the address mentioned in the registered post is not the correct address of the respondent. The complainant has deliberately sent the notice to a wrong address and the same has also been returned as "insufficient address''. I find much force in his argument, when the address of the respondent available in the promissory note, the complainant ought to have sent the notice to that address. Even after return of notice, he did not take any step to send the notice to correct address. Apart from that, under Section 27 of the General Clauses Act, since the registered post has been sent to the incorrect address of the respondent, the complainant cannot take any advantage under section 27 of General Clauses Act.
9. Considering all these materials, I find no infirmity or perversity in the judgment of the trial Court, and I find no reason to interfere with the order of acquittal passed by the trial Court. Hence, the appeal fails and the same is liable to be dismissed.
10. In the result, the Criminal Appeal fails and accordingly, the same is dismissed. The judgment of the trial Court in C.A.No.160 of 2004, dated 04.05.2005, passed by the learned Additional District Judge, Fast Track Court No.1, Coimbatore is hereby confirmed.
15.11.2017 Index:Yes/ No Internet: Yes/No ksa To
1. The Additional District Judge, Fast Track Court No.1, Coimbatore.
2. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN, J
ksa Crl. A. No. 899 of 2005 15.11.2017