KWALITY SPINNING MILLS LIMITED Vs. ELGI FINANCE LIMITED

JUDGEMENT

(1.) BOTH the petitions are being disposed of through this common order as the issue and the parties are one and the same. These petitions have been filed by the petitioners/accused Nos. 1 and 2, namely, the company and the managing director, seeking to quash the proceedings initiated through two private complaints filed by the respondent/complainant for the offence under section 138 of the Negotiable Instruments Act, 1881. The main point urged by Mr. Sairam, counsel for the petitioners in these quashing petitions is as follows : "even according to the complaints, the first notice was not served on the accused as the postal cover was returned with the reasons 'out station'and'not claimed'though the notice sent on August 29, 1996, was returned, again, it was reposted on September 7, 1996, and, therefore, another cause of action cannot be created by sending the same notice once again. Furthermore, the covering letter was sent on September 7, 1996, and the same was received by the first accused alone on September 9, 1996. This shows that the second notice dated September 7, 1996, was not within 15 days from the date of dishonour. Therefore, these proceedings have to be quashed on the ground that there cannot be a second cause of action and the notice was not sent within time. " I heard counsel for the petitioners and the respondent. On going through the complaints taken on file in C. C. No. 475 of 1996 and C. C. No. 476 of 1996 by the trial court for the offence under section 138 of the Negotiable Instruments Act, the submissions made on the basis of the above grounds would not deserve acceptance. According to the complaints, the cheques were presented on August 16, 1996, and they were returned with intimation on August 21, 1996, august 22, 1996, and August 23, 1996. Within 15 days from the date of receipt of the intimation about the dishonour, the complainant/respondent sent a notice on August 29, 1996, to accused Nos. 1 and 2 demanding the accused to pay the total amount of the cheques within 15 days from the date of receipt of the said notice. This notice addressed to the accused was returned on September 7, 1996, as "party not available" and "not claimed". Therefore, he sent the very same notice dated August 29, 1996, along with the covering letter on September 7, 1996, which was received by the first accused on September 9, 1996, though the notice addressed to the second accused was returned with the endorsement "not claimed". These things would make it clear that the notices were sent in respect of these cheques on August 29, 1996, within 15 days from the date of the intimation about the dishonour and when they were returned as "not claimed", the complainant sent the same notice dated august 29, 1996, to the accused and the same was received by the first accused on September 9, 1996. Thus, it is obvious that the notice dated August 29, 1996, was sent within 15 days and the covering letter dated September 7, 1996, would only indicate that he informed the accused that he sent the notice on august 29, 1996, itself. Therefore, the statutory notice, in my view, has been sent within the stipulated time. According to counsel for the petitioners, there cannot be a second cause of action. The second cause of action would not arise in this case, since the complaint is only in respect of the demand of the cheques amount through the notice sent on August 29, 1996. As held by the Supreme Court in K. Bhaskaran v. Sankaran vaidhyan Balan 1999 2 MLW (Crl.) 357; 2000 (99) CC 268, it is settled law that a notice refused to be accepted by the addressee or notice returned as "not claimed" by avoiding service can be presumed to have been served on him. The very same proposition has been laid by the apex court earlier in karnataka Public Service Commission v. P. S. Ramakrishna 1996 1 SCC (L&s)532 and the same has been followed by this court in K. R. K. Natarajan v. P. Kumar 1998 2 LW (Crl.) 468. On the strength of these decisions, it is contended that the service had been effected on September 7, 1996, itself when the postal cover was returned as "unclaimed" and that on the basis of the returned unclaimed postal cover, the complainant ought to have come to the court to file the complaint stating that the returned unclaimed letter also would be construed by the effective service. But, these contentions and the judgments referred to above would not apply to the present facts of the case. In this case, the complainant did not incline to rush to the court immediately, since he did not feel that the accused was evading service. Therefore, he sent the same notice dated August 29, 1996, with a covering letter on September 7, 1996, in order to see that the notice is served on the accused. As such, it cannot be contended that the notice was sent only on September 7, 1996, and it is only an intimation that notice for demand was already sent to him. The return of postal cover as "unclaimed" would amount to constructive service only when there is a situation where the accused was evading service. In this case, as stated above, the complainant did not think that the accused was evading service and his only concern was to collect the cheques amount from the accused on receipt of the demand notice dated August 29, 1996. In view of the above fact situation, it has to be held that the notice was sent on August 29, 1996, within 15 days from the date of intimation of the dishonour and the same which was sent again with a covering letter dated September 7, 1996, was received on September 9, 1996, and, therefore, it has to be construed that the notice which was sent on August 29, 1996, alone was served on the accused on September 9, 1996. Hence, the date of sending of notice has to be construed as August 29, 1996, within the stipulated time and the service of notice dated August 29, 1996 which was served on the accused on September 9, 1996, has to be taken actual service. Consequently, it has to be held that there is no second cause of action and it cannot be said that the notice was sent beyond the period of limitation. In view of the discussion made above, I do not find any merit in the petitions and accordingly, the same are dismissed. Consequently, crl. M. P. Nos. 10935 and 10936 of 1998 are also dismissed. The trial court is directed to go on with the trial and dispose of the matter as expeditiously as possible. After the pronouncement of the order, Mr. Sairam, learned counsel for the petitioners, would submit that the second petitioner is aged about 70 years and the appearance of the second petitioner before the trial court on each and every hearing would cause inconvenience to him. Therefore, counsel for the petitioners requests this court to permit the second petitioner to file an application under section 205 of the Criminal Procedure Code. I heard counsel for the respondent. In view of the old age of the second petitioner, it is open to the second petitioner to file an application under section 205 of the criminal Procedure Code before the trial court and seek the relief of dispensing with his appearance. In that event, the trial court may consider the same and pass orders subject to suitable terms. .