TMI Blog2004 (4) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the balance amount, the accused issued Ex.P.1-Cheque for ₹ 24,400 on 30.9.1992 at Periyakulam drawn on State Bank of India, Theni Branch. The Complainant presented the cheque in Lakshmi Vilas Bank, Periyakulam for collection. The cheque was dishonoured for insufficient funds . The same was intimated to the Complainant by his Bank under Ex.P.2 - Memo on 9.12.1992. 4. On 19.12.1992, the accused issued Ex.P.3-lawyer's notice demanding the amount due on the cheque. The accused intentionally evaded service of the notice and the notice returned to the sender with the endorsement intimation given; not claimed . Since the accused evaded the service of notice, it must be deemed to be constructive notice and sufficient service of notice on the accused. The accused failed to pay the cheque amount till 15.1.1993. Hence, the Complaint was filed against the accused under Section 138 of N.I.Act. 5. To substantiate the averments in the Complaint, on behalf of the complainant, complainant examined himself as P.W.1. P.W.2 is the Banker of the complainant. Exs.P-1 to P-6 are marked. No oral evidence was adduced on behalf of Respondent/accused. But Exs.D-1 to D-6 were marked on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther contended that the mere sending of notice to the correct address itself is sufficient compliance of the requirement and the trial Court erred in finding that there was no sufficient notice. 10. In this appeal, though notice was served upon the respondent, the respondent has not entered appearance. His name was printed in the cause list. Though the respondent remains unrepresented, the defence and the contentious points urged by the accused before the trial Court is taken into consideration while appreciating the contentious points urged by the appellant in this appeal. 11. Upon reassessment of the evidence and materials on record, impugned judgment and reasonings for acquittal and submissions of the complainant, the following points arise for consideration in this appeal: (1) Whether any amount due payable by M/s. Angala Easwari Lorry is proved by the complainant ? (2) Can the complainant make the claim against the accused (under Ex.P.1 - Cheque) for the amount payable by M/s. Angala Easwari and Santhi Lorry Services claiming the same as the joint business ? (3) Whether Ex.P-1 is proved to have been issued for legally enforceable debt from the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque was not issued for legally enforceable debt thus finding that the presumption is rebutted. It is to be seen whether this finding of the trial Court suffers from any erroneous approach. 17. According to the Complainant, the accused and his brother Kanagaraj are jointly running lorry business by operating two lorries in the names of Angala Easwari and Santhi and that business is the joint business. Further case of the Complainant is that accused issued the cheque - Ex.P-1 (3.9.1992) for ₹ 24,400 towards discharge of the amount due from the joint business. In support of his claim, the Complainant relies upon the averments in Ex.P.4-legaI notice and the joint statement of accounts of Angala Easwari and Santhi enclosed with Ex.P-4. The case of the Complainant is that amount of ₹ 24,415 is payable on the joint account of Angala Easwari and Santhi. Ex.P.4 - Notice was issued to the accused alleging that the accused and his brother Kanagaraj are plying lorries in the name and style of Angala Easwari Santhi Lorry Services; both of them used to purchase spare parts for their lorries from the Complainant on credit; that the accused and his brother jointly and severally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards part payment from Angala Easwari Lorry - No. TN59 Z 1814. Thus Exs.D-1 to D-6 clearly proves the defence that they are issued to the accused by the Complainant while he is separately dealing with his lorry Angala Easwari. 22. The accused is no way concerned with lorry Santhi owned and separately operated by his brother Kanagaraj. It may be that, like the accused, his brother Kanagaraj might have had dealings with Complainant -Alim Auto Supplies making purchase on credit for his lorry - Santhi and that the amount might be payable by Santhi Lorry. But in the absence of evidence showing that it is the joint business, Complainant cannot claim to tag that amount with that of the accused under the pretext of claiming as the joint business. Excepting the ipse dixit of the Complainant, no other material showing that the business was the joint business and that the brothers had joint account with the Complainant. Considering the same, the trial Court was right in finding that there is no legally enforceable debt. 23. The learned counsel for the Complainant contended that the cheque need not be issued for the personal debt and that the same could be enforced even against the indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Complainant in the complaint that the Accused is evading the service. Although, in appropriate cases, deemed service is to be accepted by the Court, such presumption of deemed service is not a matter of course in all cases. To raise the presumption of deemed notice, there should be clear averment in the complaint that the Appellant/Complainant had sent the statutory notice on demand intimating the dishonour of cheque and that the Respondents/Accused were evading the service. In the absence of such averment, no such presumption of deemed notice could be raised. 28. Thus the general burden is upon the Complainant to prove the facts constituting the sending of notice and that there is deliberate evasion of service of notice by the accused. In the instant case, absolutely no averments are made either in the Complaint or in the evidence of P.W.1. Considering the facts of the present case, in my view, it is not an appropriate case to raise such presumption of constructive notice against the accused. 29. The appreciation of evidence and the findings of the trial Court that there is no legally enforceable debt from the accused is based on the evidence on record. The view take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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