APHC010468082014 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] TUESDAY, THE NINTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1711/2014 Between: 1. NEELAM BHASKARA RAO, S/O. KRISHNA RAO C/O. VANAPALLI SURYANARAYANA MURTHY R/O. D.NO.68-5-9/2A NEAR GOKULAM ASHOKNAGAR KAKINAGAR EAST GODAVARI DISTRICT ...PETITIONER AND 1. P P HYD ANO, REP. BY THE PUBLIC PROSECUTOR HIGH COURT HYDERABAD 2. VASAMSETTI RAVI KUMAR, S/O. SUBBARAO R/O. D.NO.65-2-7/2 NARSANNAGAR KAKINADA EAST GODAVARI DISTRICT ...RESPONDENT(S): Revision filed under Section 397/401 of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to filed under Section 397 r/w. 401 of Cr.P.C., against the judgment dated 14.08.2014 passed in Crime Appeal No. 179 of 2012 on the file of the Court of the III Additional District and Sessions Judge, East Godavari District at Kakinada confirming the judgment dated 17.04.2012 passed in C.C.No.149 of 2011 on the file of the court of the V Additional Judicial Magistrate of First Class, Kakinada, East Godavari District. IA NO: 1 OF 2014(CRLRCMP 2793 OF 2014 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the filing of certified copy of the Calendar and Judgment dated 2 17.04.2012 in C.C.No.149 of 2012 passed by the Court of the V Additional Judicial Magistrate of First Class, East Godavari District and pass IA NO: 2 OF 2014(CRLRCMP 2818 OF 2014 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the conviction and sentence imposed in the judgment dated 14.08.2014 passed in Crime Appeal No. 179 of 2012 on the file of the Court of the III Additional District and Sessions Judge, East Godavari District at Kakinada confirming the judgment dated 17.04.2012 passed in C.C.No.149 of 2011 on the file of the court of the V Additional Judicial Magistrate of First Class, Kakinada, East Godavari District and consequently enlarge the petitioner on bail pending disposal of the above Crl.R.C. Counsel for the Petitioner: 1. P DURGA PRASAD Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR (AP) 2. A K KISHORE REDDY The Court made the following Order: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1711 OF 2014 ORDER: Being aggrieved by and dissatisfied with the concurrent finding of the learned Courts below against the present petitioner, wherein the learned Courts below found the accused/petitioner guilty for the offence punishable under Section 138 of N.I.Act and convicted him to suffer simple imprisonment for two years, the instant criminal revision case has been preferred. 2. At the outset, the single issue is involved in the instant criminal revision case has to be determined. Issue is: “Whether the determination of learned trial Court as well as the learned appellate Court regarding service of statutory notice under Section 138 (b) of N.I.Act, upon the present petitioner in his in-laws house, is proper compliance as per the provision of law?” Or “Complaint made under Section 138 of N.I.Act on the basis of returned demand notice is justifiable?” 3. This dissatisfaction was also raised before the learned trial Court as well as the learned appellate Court, both of the learned Courts below has decided that the statutory notice was properly served upon the petitioner. 4. To understand the fact properly, it is necessary to demonstrate the case, a cheque amounting to Rs.10,00,000/- was forwarded by the petitioner to the complainant. The said cheque was put to the banker to encash but it was returned with endorsement “Account is Dormant”, thereby, the 4 complainant has served a legal notice upon accused/petitioner at the address in the house bearing D.No.68-5-9/2a. The said notice was returned with an endorsement “Intimated, not claimed.” It was pleaded by affidavit as well as by oral evidence by the petitioner before the learned trial Court that he is residing in the house bearing door number 65-2-2/2. In support of his contention, the accused/petitioner has filed Exs.D1 and D2. Ex.D1 is driving license issued in the year 1994 and another is electricity bill issued in the year 2011. 5. Admittedly, the legal notice was served in the year 2011. Learned trial Court, in deciding this issue, has of the opinion that the address mentioned in the legal notice is also mentioned in the address of the petitioner/accused in the cause title of the calendar case. The summons upon the accused/petitioner of the calendar case was also returned with same endorsement, “Intimated, not claimed.” On such, the learned trial Court is of the opinion that the accused/petitioner had express knowledge regarding service of demand notice upon him, as he appeared in the calendar case and contested the same by taking necessary steps. Thus, the plea of the petitioner/accused was not considered. The calendar case was ended with conviction. Hence, the petitioner was approached the appellate Court. The same was also placed before the appellate Court. The appellate Court is of the view that though the petitioner has placed two documents i.e, Exs.D1 and D2, to show actual address of the accused but the petitioner himself claimed that the address in the demand notice is the house of his father-in-law. Learned appellate Court also of the view that though the demand notice was 5 not served upon the actual residence of the accused but the petitioner had knowledge of such demand notice. The same issue has again raised before this Court. 6. Learned counsel for the petitioner submits that the petitioner being accused had sufficiently proved before the learned trial Court as well as the appellate Court that his actual residence is elsewhere to that of the address mentioned in the demand notice. He further submits that Exs.D1 and D2 are the documents showing the permanent residence of the petitioner. The present respondent being the complainant was well known about the residence of the petitioner. He further submits that the present respondent/complainant and the petitioner are known since their childhood and their residence also nearby but only to harass the present petitioner, he served demand notice at his in-laws house. He further submits that the learned trial Court as well as the learned appellate Court has erroneously decided the issue that statutory notice issued under Section 138 (b) of N.I.Act required to be served upon the drawer of the cheque/petitioner. The complainant knowingly served notice at the in-laws residence of the petitioner. In support of his contention, he places judgment of the Hon’ble Supreme Court in M.D.Thomas vs. P.S.Jaleel and another in Criminal Appeal No.711 of 2009, wherein the Hon’ble Apex Court has held that service of demand notice under Section 138 of N.I.Act upon the appellant’s wife cannot be treated as compliance of the mandate of law. 6 7. Under the above submission, learned counsel for the petitioner submits that the impugned order of conviction is required to be set aside. 8. Learned counsel for the respondent/complainant submits that the same issue was agitated before the trial Court as well as the learned appellate Court, both the learned Courts below, had decided the issue properly, after scanning the evidence on record. He further submits that the complainant had knowledge regarding the address of the accused/petitioner, he served demand notice upon the in-laws of the petitioner wherein he was residing at that time. He submits that the learned trial Court as well as the appellate Court is justifiably came to opinion that as the petitioner has appeared before the learned Courts below, after receiving the notice of the calendar case at the address of his in-laws house, the petitioner must have knowledge of service of demand notice when he was residing at his in-laws house. He further submits that Section 138 of N.I.Act dictates the drawer of the cheque, after receiving information regarding dishonour of cheque, he appeared before the learned Court below, atleast have the knowledge of such fact but he did not to pay any amount. At this juncture, the claim of the petitioner cannot be considered. In support of his contention, he cited a decision of the High Court of Karnataka at Bengaluru passed in Criminal Revision Petition No.814 of 2021, wherein it is held as follows: “29. Presumption under the General Clauses Act, 1897, would go to show that if a person has addressed a registered letter to the last known address that was known to a particular person, it is deemed to have been served. 7 30. Under such circumstances, admission, i.e., obtained in the cross- examination attributable to the complainant is not that significant enough to hold that the entire case of the complainant is to be discarded. As is referred to supra, since the purpose of issuing notice is to save the bonafide drawer of the cheque, nothing prevented the accused to pay the money after he appeared before the learned trial Magistrate or at least at the stage of the appeal, or at least before this Court. 31. Therefore, the arguments put forward on behalf of the revision petitioner that improper service of notice should result in dismissal of the compliant cannot be countenanced in law.” 9. Heard learned counsel for the parties. 10. In deciding the issue, the endorsement in the demand notice is the guiding factor as to decide whether the endorsement i.e., “Intimated, not claimed.” is a good service or not. This is the sole question to be determined in the instant criminal revision. The service of notice under Section 138 (b) of N.I.Act is a guiding factor to initiate a complaint under Section 138 of N.I.Act. To clarify the entire issue, a registered consignment with the post office may be returned with endorsement such as “left”, “not known”, “not available in house”, “doors closed”, “left without intimation”. In this case, the endorsement shows “Intimated, not claimed”. 11. There is nothing before the learned trial Court or before the appellate Court or before this Court that the postal authority had any connivance with the complainant to make such endorsement in the registered cover. That a registered notice can be said to be not served, if the endorsement are "not available in the house", "house locked", "shop closed" and "left, not known" 8 etc. But in endorsement like “refused”, “intimated not claimed”, “not claimed” etc., which can be considered as a good service of notice. In this particular case, it is only the effort of the petitioner to prove that the demand notice was not actually served, thus, the complaint under Section 138 of N.I.Act is not maintainable. To prove such issue he placed two documents to show his actual address. Serving a statutory notice under Section 138 (b) of N.I.Act prescribes that a demand notice has to be served upon drawer of the cheque, a person being drawer of the cheque, may have one address, service of one address upon the drawer of the cheque is sufficient. In my view, the service of notice, which was returned endorsement, “Intimated, not claimed” is a good service. 12. In so far as, the jurisdiction of this revisional Court in deciding the issue which was earlier decided by learned Courts below is required to be dealt with properly. In a revisionary jurisdiction, this Court has only authority to look after the illegality and impropriety of an order passed by the lower Court. In deciding such illegality and impropriety, the Court cannot go into merit of finding of a lower Court, whether it was legal or illegal, only to decide whether the decision of the Court below are at the basis of the evidence on record. In this particular case, both the learned Courts below of the view that as the petitioner has appeared before the learned trial Court on the basis of his address in the cause title of the calendar case, which is same as in the registered cover of demand notice. Thus, the conduct of the petitioner shows that he had proper knowledge of the demand notice. In careful scanning of the 9 opinion of the learned Courts below, I find no justification to hold otherwise to that of their view. In my opinion, the learned trial Court as well as the learned appellate Court has decided the issue properly and this Court find no scope to interfere with the finding. It appears to me correct one. 13. On the above observation, the instant Criminal Revision Case being meritless is hereby dismissed. The order of suspension of sentence passed by this Court during pendency of the instant Criminal Revision Case is hereby revoked. The Petitioner is directed to appear before the learned Trial Court within two (02) weeks from the date of passing of this order to serve out the remaining portion of sentence, failing which, learned Trial Court shall issue Non-Bailable Warrant against the present Petitioner to comply the order. As a sequel, pending miscellaneous applications, if any, shall stand disposed of. ____________________________ JUSTICE SUBHENDU SAMANTA Date: 09.12.2025 Note: Issue C.C by 12.12.2025 B/o SPP 10 THE HON’BLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE No.1711 of 2014 09.12.2025 Note: Issue C.C by 12.12.2025 B/o SPP