S. RAJAN Vs. E. SATYANARAYANAN

JUDGEMENT

(1.) Originally, the respondent/accused has been convicted by the learned XV Metropolitan Magistrate, George Town, Chennai, in C.C. No. 1896 of 2002, by order dated 14.10.2006, for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and to pay a compensation of Rs. 1,80,000/- to the complainant within two months, in default to undergo two months simple imprisonment. On Appeal, the learned VI Additional Sessions Judge, Chennai, has set aside the conviction and sentence by judgment, dated 5.3.2008, in C.A. No. 294 of 2006 and acquitted the accused from the offence under Section 138 of the Negotiable Instruments Act. Aggrieved against the same, the complainant is before this Court with this revision. The facts of the case in a nut-shell are as follows:-The Petitioner/complainant preferred a complainant against the respondent/accused alleging that the accused borrowed a sum of Rs. 1,50,000/- on 4.2.2001 and executed a pro-note and also to repay that amount, he has issued a cheque dated 5.3.2002 for Rs. 1,50,000/- and when the cheque was presented before the Punjab National Bank, the same was returned with an endorsement, 'Insufficient Fund', therefore the complainant issued a notice to the accused on 21.3.2002, which was returned to the complainant, inspite of the notice, the accused did not pay any amount, therefore, the complainant preferred a complaint under Section 200 Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act.

(2.) Mr. N. Baaskaran, learned counsel for the petitioner/complainant submits that the petitioner had sent a statutory notice to the respondent/accused on 21.3.2002 and it was intimated by the postal authorities to the accused on 22.3.2002, but inspite of the same, the accused did not choose to take the notice from the Postal Department, therefore, it was returned to the petitioner/complainant. But, the first Appellate Court on a wrong assumption that the petitioner/complainant has to prove the actual delivery of the notice, has set aside the order of conviction and sentence passed by the lower Court and allowed the appeal, dismissing the complaint. The learned counsel would further contend that earlier, on appeal, the matter was remitted back to the lower Court, after remand, the accused has examined an Officer from the Postal Department as D.W. 3-Ramamurthy, who has clearly deposed regarding the intimation but, in spite of the same, the first Appellate Court has wrongly come to the conclusion that the statutory notice has not been properly served, therefore, only on the sole ground that the service of statutory notice has not been clearly proved by the complainant, the complaint was dismissed. Aggrieved against the same, the complainant has come forward with the present revision.

(3.) To substantiate his contention, the learned counsel for the petitioner/complainant would rely on the latest decision of the Supreme Court reported in C.C. Alavi Haji vs. Palapetty Muhammed and Another, 2007 6 SCC 555 and he would contend that when the notice was sent to the correct address of the accused as per Section 27 of General Clauses Act, the presumption is that the notice has been duly served on the accused, therefore, in this case, when the petitioner/complainant has taken all possible steps to serve notice on the accused and the same has been proved, the conclusion of the first Appellate Court that the service of statutory notice has not been clearly proved by the complainant and dismissing the complaint is not correct and therefore, he challenges the order of dismissal.