B KIRANMAYE Vs. PRASOONA TRADERS

JUDGEMENT

(1.) First respondent filed a private complaint against the petitioner alleging that for a debt due to it in connection with the cotton business transactions between it and the petitioner, petitioner issued a cheque dated 14-08-2002 for Rs. 7,00,000/- drawn on Bank of India, Guntur, which, on presentation for payment, was returned with a memo dated 07-01-2003 that the amount covered by the cheque exceed s the arrangements made, and so it got issued a statutory notice dated 20-01-2003 to the petitioner about return of the cheque and demanding payment of the amount covered by the cheque, but the same was returned un-served and so the petitioner is liable for punishment under Section 138 of the Negotiable Instruments Act, 1881 (the Act). The learned Magistrate took cognizance of the offence. This petition is filed to quash the said proceedings.

(2.) The contention of the learned counsel for petitioner is that even if all the allegations in the petition are taken to be true, there is no cause of action for filing the complaint, since the statutory notice, admittedly, was not served on the petitioner, because the specific allegation in the complainant is that the notice was "returned without service". He strongly relied on R.M. Sundaram v. CM. Rarnraf ; Shashi Finance Corporation v. Super Shine Abrasives (P) Ltd., Hyderabad and others; and M/s. Shakti Travel & Tours v. State of Bihar and another, in support of his said contention. He further contended that the petitioner, after receiving summons in the case, got enquiries made at the Begumpet Post office, which delivers the mail in Ameerpet areas also, and came to know that the registered notice allegedly sent by the first respondent was not received in that post office, and that the Sub-Post Master, Begumpet, at the request of the petitioner, issued a certificate to that effect, and so it is clear that first respondent must have managed to get a false endorsement on the registered letter that the addressee is not found. His next contention is that the proprietor of the first respondent who is a close relative of the petitioner is inimically disposed towards the petitioner, has been trying to implicate her in civil and criminal litigation and so, he after coming to know that some blank cheques, containing the signatures of the petitioner, were lost, must have managed to catch hold of some of the cheques and filed the complaint against the petitioner after managing with the postal authorities must have got an endorsement made that the addressee is not found. Learned counsel for the first respondent relying on V. Satyanarayana v. A.P. Travel & Tourism Development Ltd., Secunderabad and another contends that since the notice was sent to the address known though the notice was returned unserved with an endorsement that the addressee was not found, in view of Section 27 of General Clauses Act, 1897, it should be deemed that, the notice was duly served and so question of quashing the complaint does not arise.

(3.) Before considering the merits of the contentions raised by the learned counsel for petitioner, I feel it relevant to refer to Section 138 of the Act, which lays down the conditions precedent for filing a complaint under that Section. It reads: