R. PANDIMURUGAN Vs. R. PALANISAMY

JUDGEMENT

(1.) THE complainant in C.C. No.466 of 2000 on the file of the Judicial Magistrate, Mettupalayam is the appellant. He filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent stating that the respondent borrowed a sum of Rs.3,00,000/ - on 16.08.2000 and executed a Promissory Note in his name and also assured to pay interest at the rate of 36% per annum. When the respondent failed to settle the amount within a month and when the appellant demanded payment from the respondent, the respondent issued a cheque bearing No. 659808 dated 27.09.2000 for a sum of Rs.3,10,000/ - drawn on Karnataka Bank Limited, Gandhiji Road, Erode, which includes interest and the cheque was presented for collection on 13.10.2000 and the same was returned with the endorsement 'funds insufficient' on 14.10.2000. Therefore, a legal notice dated 28.10.2000 was issued to the respondent calling upon him to pay such amount and the said notice was returned to the complainant/appellant with an endorsement 'refused'. Therefore, the complaint was filed.

(2.) THE appellant/complainant examined himself and one Rajagopal and marked five Exhibits and the respondent/accused examined himself and one Thangavel and marked eleven Exhibits. The Trial Court acquitted the respondent holding that the appellant failed to prove that the notice was served on the respondent or notice was issued to the respondent to the correct address calling upon him to repay the amount and the notice was issued to the address viz. Door No. 34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode, whereas, the respondent was residing in No. 52, Balusamy Nagar, Erotex Colony, Erode as proved by Ex.D1 series and therefore, in the absence of any proof of notice sent to the respondent, no case was made out against the respondent and the endorsement 'refused' in Ex.P5 cannot be taken as a proof or service of notice to the respondent.

(3.) HE further submitted that even assuming that the respondent has no knowledge about the notice in Ex.P5, in the complaint, the respondent's address was described as Door No. 34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and summons was issued to the said address and in response to the summons, the respondent appeared before the court and this aspect was not properly appreciated by the Court below. He also submitted that even in the summons sent by this court, the respondent was stated to be residing at Door No. 34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and he received the acknowledgment when the notice was sent to him and thereafter, he entered appearance and the acknowledgment signed by the respondent would also prove that he is residing at Door No. 34, Balusamy Nagar, Erotex Colony, Solar Pudur, Erode and therefore, the Trial Court erred in holding that no notice was served on the respondent as contemplated under Section 138 of the Act and the Trial Court ought to have held that notice was served on the respondent and he refused to receive the notice and therefore, it was returned with the endorsement 'refused' and that amounts to service and ought to have convicted the respondent.