Equivalent Citation: [2002]108CompCas244(Mad) IN THE HIGH COURT OF MADRAS Crl. O.P. Nos.

22504 and 22505 of 1998 and Crl. M.P. Nos. 10935 and 10936 of 1998 Decided On: 27.09.2001 Appellants: Kwality Spinning Mills Ltd., Pollachi-3, Coimbatore and Anr. Vs. Respondent: Elgi Finance Ltd. rep. by its Assistant Manager-Legal P.N. Krishnamoorthy Hon'ble Judges: M. Karpagavinayagam, J. Counsels: For Appellant/Petitioner/Plaintiff: V. Sairam, Adv. For Respondents/Defendant: Vimal B. Crimson for Rupert J. Barnabas, Adv. Subject: Criminal Catch Words: Acts/Rules/Orders: Negotiable Instruments Act, 1881 - Sections 133, 138, 141 and 142; Criminal Procedure Code, 1973 - Section 205 Cases Referred: K. Bhaskasan v. Sankaran Vaidhyan Balan and Anr., 1999 (3) CTC 358, 1999 (2) M.L.W. (Cr.) 357; Karnataka Public Service Commission v. P.S. Ramakrishna, 1996 (1) S.C.C. 730; K.R.K. Natarajan v. P. Kumar, 1998 (1) CTC 305, 1998 (2) L.W. (Crl.) 468 ORDER 1. Both these petitions are being disposed of through this common order as the issue and the parties are one and the same. 2. These petitions have been filed by the petitioners/accused 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 133 of the Negotiable Instruments Act. 3. The main point urged by Mr. Sairam, the counsel to 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 "outstation" and "not claimed". Though the notice sent on 29.8.1996 was returned, again it was re-posted on 7.9.1996 and therefore, another cause of action cannot be created by sending the same notice once again, Furthermore, the covering letter was sent on 7.9.1996 and the same was received by the first accused alone on 9.9.1996. This shows that the second notice dated 7.9.1996 was not within 15 days from the date of dishonour. Therefore these proceedings have to be quashed on the. ground chat there cannot be second cause of action and the notice was not sent within time." 4. I heard the counsel for the petitioners and the respondent. 5. 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. 6. According to the complaints, the cheques were presented on 16.8.1996 and they were returned with intimation on 21.8.1996, 22.8.1996 and 23.8.1996, Within 15 days from the date of receipt of the intimation about the dishonour, the complainant/respondent sent a notice on 29.8.1996 to the accused 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 7.9.1996 as "party not available" and "not claimed". Therefore, he sent the very same notice dated 29.8.1996 along with the covering letter on 7.9.1996 which was received by the first accused on 9.9.1996, though the notice addressed to the second accused was returned with the endorsement "not claimed", 7. These things would make it clear that the notices were sent in respect of these cheques on 29.8.1996 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 29.8.1996 to the accused and the same was received by the first accused on 9.9.1996. Those it is obvious that the notice dated 29.8.1996 was sent within 15 days and the covering letter dated 7.9.1996 would only indicate that he informed the accused that he sent the notice on 29.8.1996 itself. Therefore, the statutory notice, in my view, has been sent within the stipulated time. 8. According to the counsel for the petitioners, there cannot be 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 29.8.1996. 9. As held by the Supreme Court in K.Bhaskasan v. Sankaran Vaidhyan Baton and Anr., MANU/SC/0625/1999, 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 down by the Apex Court earlier in Karnataka Public Service Commission v. P.S.Ramakrishna, 1996 (1)

S.C.C. 730 and the same has been follows by this Court in K.R.K. Natarajan v, P. Kumar, MANU/TN/0054/1998. 10. On the strength of these decisions, it is contended that the service had been effected on 7.9.1996 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 compliant stating that the returned unclaimed letter also could 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 compliant did not incline to rush to Court immediately since he did nor feel that the accused was evading service. Therefore, he sent the same notice dated 29.8.1996 with a covering letter on 7.9.19% 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 7.9.1996 and it is only an intimation that notice for demand was already sent to him. 11. 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 29.8.1996. 12. In view of the above fact situation, it has to be held that the notice was sent on 29.8.1996 within 15 days from the date of intimation of the dishonour and the same which was sent again with a covering letter dated 7.9.1996 was received on 9.9.1996 and therefore it has to be construed that the notice which was sent on 29.8.1996 alone was served on the accused on 9.9.19%. Hence, the date of sending of notice has to be construed as 29.8.1996 within stipulated time and the service of notice dated 29.8.19%. which was served on the accused on 9.9.J996. 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. 13. 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. 14. After pronouncement of the order, Mr.Sairam, the 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, the counsel for the petitioners requests this Court to permit the second petitioner to file an application under Section 205, Cr.P.C. 15. I heard the counsel for the respondent. 16. In view of the old age of the second petitioner, it is open to the second petitioner to file an application under Section 205 Cr.P.C. 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 suitably terms.