The accused in C.C 1830 of 1991 on the file of II Metropolitan Magistrate, Egmore, Madras, have filed this petition under Section 482, Criminal Procedure Code, praying to call for the records in the aforesaid case and quash the same.
2. The respondent has filed a private complaint against the petitioner under Section 138, Negotiable Instruments Act. The allegations in it are briefly as follows.
The first accused is a firm represented by its partner who is incharge of it viz., the second accused. In respect of the goods sold and delivered, the second accused issued a cheque on 11-12-1990 for RS. 70,000/-. The second accused is incharge of the business. The complainant presented the cheque on 17-12-1990 for encashment. It was returned with an endorsement “refer to drawer” due to lack of sufficient funds and notice of dishonour was received by the complainant on 18-12-1990. He issued a notice through lawyer, dated 27-12-1990, calling upon the accused to pay the amount due under the dishonoured cheque. In order to escape from the consequences of Section 138, Negotiable Instruments Act and to circumvent the same, the accused managed to return the notice with an endorsement “not found”. The registered letter was received back by the complainant on 19-1-1991. Immediately he went to the business place of the accused and asked him to take notice which he refused. The complainant had sent notice by registered post with proper address by paying proper charges and so it must be deemed that service of notice was effected on the accused. The cause of action was arose on 3-2-1991 viz., 15 days after the postal endorsement, dated 19-1-1991. Hence the complaint.
3. Mr. T. Munirathina Naidu, the learned counsel appearing for the petitioners, would contend that there was no service of notice on the accused and hence the question of payment of amount within 15 days of service of notice does not arise in this case and offence under Section 138, Negotiable Instruments Act is not complete and on that ground, the complaint is liable to be quashed.
4. The complainant states that the second accused issued cheque on 11-12-1990 that it was presented on 17-12-1990 and it was returned dishonoured with endorsement “refer to drawer” and notice of dishonour was received on 18-12-1990. It is further alleged that the complainant sent notice through lawyer on 27-12-1990 calling upon the accused to pay the amount due under the dishonoured cheque. Then it is alleged as follows:
“The complainant states that in order to circumvent and escape from the attraction of mischief under Section 138 of Negotiable Instruments Act and managed to return the above said notice with an endorsement ‘not found’. The Registered Letter was received back by the complainant on 19-1-1991. Immediately after the return of the said notice, the complainant went to the business place of the accused wherein he is still doing business and asked him to take the notice, which he refused. The Complainant has sent the notice by registered post with proper address and by paying postal charges, so it is deemed that the service of the notice is effected on the accused.”
The above allegations would make it clear that the accused was quite aware of the sending of the notice and with deliberate intention of avoiding the consequences of Section 138 of Negotiable Instruments Act, had managed to return the aforesaid notice that it was addressed to the proper address. It is also alleged that the complainant went to the business place of the accused and asked him to take the notice which he refused. The above, if proved, would clearly amount to constructive service of notice. It is idle to contend that even in such circumstances and in the face of such positive allegations that there was no service of notice and hence offence under Section 138 of Negotiable Instruments Act is not made out. The aforesaid allegations would go out to show that accused was quite aware of the sending of the notice by the complainant and deliberately avoided receipt of the same. It cannot but amount to constructive service of notice and the calculation of further period with reference to 19-1-1991 is correct.
5. The learned counsel would further contend that the notice of dishonour of the cheque was received by the complainant on 18-12-1990 and the allegation that complainant went to the business place of the accused and asked him to take notice was only on 19-1-1991 and that was beyond 15 days from 18-12-1990 and hence there is no statutory notice. The allegation that complainant went to the business place of the accused and asked him to take the notice is only with reference to the notice which had earlier been sent by registered post on 27-12-1990. It is not a new notice. That act is to be tacked to 27-12-1990 when the registered notice was sent which is within 15 days of 18-12-1990. Hence I am unable to accept either this contention.
6. In view of the above, the petition does not deserve admission and is dismissed.