R. Shenbagarajan and Sons Silk Cotton Factory vs N. Radhakrishnan

A. Packiaraj, J.—This is an application filed to set aside the order passed by the Principal Sessions Judge, Madurai dated 30.10.2000,

conforming the order passed by the learned District Munsif cum Judicial Magistrate, Bodinayakanur dated 10 07.2000.

The petitioner herein is A-1 namely R. Shenbagarajan and Sons, Silk Cotton Factory, Railway Feder Road, Bodinayakanur Town, rep. by

Mukunthavasan as Partner of the Firm, Theni District who has been prosecuted along with the another person, who is the partner of the firm for

offences u/s 138 and 142 of the Negotiable Instruments Act (hereinafter referred to as the Act).

It may not be necessary for me to go into the facts and circumstances of the case, suffice it to state that the only ground taken in this case is that

the notice issued on behalf of the petitioner has not been received by the petitioner and consequently, the provisions u/s 138(b) of the Act have not

been complied with.

In support of the arguments advanced above, Mr. Dhanasekaran, the learned counsel appearing for the petitioner relied on the decision of the

Apex Court reported in M/s. Dalmia Cement (Bharat) Ltd. Vs. M/s. Galaxy Traders and Agencies Ltd., , wherein their Lordships have held that

to constitute an offence u/s 138 of the Act, the complainant is obliged to prove its ingredients which include the receipt of notice by the accused

under clause (b).It is not the ""giving"" of the notice which makes the offence but it is the ""receipt"" of the notice by the drawer which gives the cause

of action to the complainant to file the complaint within the statutory period. It has been further held that unless the receipt had been established,

the accused cannot be saddled with the liability.

Therefore, the learned counsel for the petitioner would argue that had he received the notice, he would have made good the loss or given a

suitable reply. However all that has been contended is that the Registered letter which has been purported to have been addressed to the petitioner

contains an endorsement that ""addressee gone out"" and hence he pleads that notice has not been received by him.

In the judgment cited supra, their Lordships have further held that if a strict interpretation is given that the drawer should have actually received

the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer

would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the

Act. It must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that

would defeat the very legislative measure.

Therefore, in my opinion since the petition has been filed at the threshold and the endorsement discloses that the petitioner was out of station, it

is for him to establish the same in the Court that he was really out of station at the relevant time, which would offer sufficient proof of the said

endorsement. Otherwise in the language of the Supreme Court, a trickster being inside the house will very well make arrangements to inform the

post-man who will be a stranger to the addressee that the concerned person is not in station and such an endorsement can be easily be obtained.

But that certainly is not the intention of the law.

Apart from the above, what is more surprising here in this case is that the petitioner herein is not an individual, but a factory. Therefore, by no

stretch of imagination can we say that this factory could be out of station and consequently, the endorsement made in the Registered Post is

obviously wrong. Accordingly, I see no reasons to set aside the order passed by the learned Sessions Judge, Madurai.

In the result, the petition is dismissed. Consequently, connected Crl.M.P is closed.