IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 CRL.A.No. 534 of 2003(C) --------------------------------- ST.7830/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA ........................................................................................... APPELLANT(S): COMPLAINANT --------------------------------------------- P.MADHAVA MENON, SREEVALSAM, EDAKULAM, THRISSUR DISTRICT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): ACCUSED --------------------------------------- 1. VENUGOPALAN @ MOHANAN S/O. PADMAVATHY AMMA, PROPRIETOR, OMEGA FINANCE, DEVASWOM BUILDING, IRINJALAKUDA, THRISSUR DISTRICT 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.DINESH R.SHENOY SRI.T.N.MANOJ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.534 OF 2003 -------------------------- Dated this the 17th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal passed by Judicial First Class Magistrate Court, Irinjalakuda, in S.T.783098. It is the case of the complainant that the accused was conducting a business by name and style `Omega Finance' and that he had availed loan of Rs.2 lakhs and towards the discharge of the liability including the interest, had issued a cheque for Rs.2,29,750/-, which when presented for encashment returned back for `insufficiency of funds'. Thereafter, lawyer notice was issued and as he did not pay the amount, further action was launched against him. The court below did not find in favour of the complainant and acquitted the accused u/s.255(1) of Cr.P.C. It is against that decision the complainant has come up with this appeal. 2. The points that arise for determination are, 1. Whether the court below was correct in acquitting the accused. 2. Whether the order of acquittal passed by the court below CRL.A.No.534 OF 2003 2 require interference. 3. Point Nos.1 and 2 :- It is the case of the complainant that the accused was running a financial institution had taken an amount from the complainant on three occasions as Rs.60,000/-, Rs.40,000/- and Rs.1 lakh and thereafter issued a cheque towards the discharge of the liability, which (is Ext.P1), when presented for encashment returned with `insufficiency of funds'. So far as the borrowal of the amount is concerned, it is admitted by the accused u/s.313 question and therefore there was an amount due to the complainant from the accused, is proved by the acceptance of the same by the accused in 313 examination. Now it is in that background, we have to consider Ext.P1 cheque. Ext.P1 cheque is for an amount of Rs.2,29,750/-. It is a type written cheque, signed by the accused. PW1 has deposed before the court that it was towards the discharge of the liability and he had gone to the finance company, from where the cheque was type written and signed and handed over to the complainant. Thus the execution of the CRL.A.No.534 OF 2003 3 cheque towards the discharge of the liability is proved and therefore an action u/s.138 of Negotiable Instrument Act will lie. Now the other point that has come up before the court is regarding the insufficiency of notice. U/s.138 of Negotiable Instrument Act there is a mandate that a notice has to be given in writing as envisaged u/s.138 (b) of Negotiable Instrument Act. Here, the complainant had issued two notices, one in the residential address and the other under the official address of the accused. So far as the residential address is concerned, it is seen that the house has been closed and he had left the place. With regard to the notice addressed in the official address is concerned, he was absent and it was intimated on 20.7.08 and the notice is returned back on 21.7.08. Now the learned counsel would strongly contend that the very purport of a notice in writing is to inform the accused about the whole case and give him an opportunity to correct it. Recently, the apex court had considered the question regarding the correctness of the notice and in that decision, had even laid down the principle that if a CRL.A.No.534 OF 2003 4 notice is not received by an accused in a criminal case, u/s.138 of Negotiable Instrument Act, he can enter appearance and state that no notice is given to him and then tender the amount due so that further prosecution can be averted. There is no such conduct on the part of the present accused in this case. It is also equally important to note that, while considering the question of notice provisions of the General Clauses Act has to be considered, if a notice is sent in a proper address, it has to be presumed that there is a valid notice. The apex court also held in very many decisions that, so much of technicality if is attached to the service of notice, that when a litigant who does not want to pay the amount can easily escape by stating that he had not received the notice. The only thing which requires scrutiny in such cases is whether the notice is addressed in a proper address or not. Now it can be seen from the materials available that the official address is the address used in the complaint as well as in the appeal memorandum for effecting service of notice on the accused. He had received the notice, CRL.A.No.534 OF 2003 5 and he had entered appearance before the court. So the official address is proper. Now if a person is going away from the place of original residence, then there is a burden on him to inform the postal authorities, that there is a change of address and therefore any communication must be re-directed to him in that address. Even otherwise, it is to be stated that he should have informed, the complainant if there is change of residence. In the decision reported in 2007 (3) KLT 77, would draw much light on this subject. The court held that in a case, “Alavi Haji Vs.Muhammed, where the payee despatches the notice by registered post with correct address of drawer of cheque, principle incorporated in Section 27 of the General Clauses Act would be attracted. `` The Apex court also opined that a person who does not pay within 15 days of receipt of the summons of court along with the copy of the complaint, can not obviously contend that there is no proper service of notice as required u/s.138 of Negotiable Instrument Act, by ignoring statutory presumption to the contrary u/s.27 of the General Clauses Act. CRL.A.No.534 OF 2003 6 So applying the dictum laid down in this decision to the facts of the present case it can be seen that the complainant had taken special care to issue notice both in his residential address as well as in the official address. The endorsement on the cover which is addressed in the official address indicates that intimation was given on 20.7.2008 regarding the letter. As he did not come forward to receive notice it was returned. There is no case for the accused that he had intimated change of address to somebody which would have enabled the complainant to send the notice in that address. Therefore it has to be held that there is notice in writing as contemplated u/s.138 (b) of Negotiable Instrument Act and therefore it can not be held that the prosecution is bad for want of proper notice. From these discussions I find that, the learned Magistrate had gone wrong in deciding both the points in the case. The execution of Ext.P1 is proved and it is towards the discharge of liability is also proved. Issuance statutory notice is also proved and the amount is not paid back. So it can be conclusively held that the accused CRL.A.No.534 OF 2003 7 is guilty of the offence punishable u/s.138 of Negotiable Instrument Act. 4. Therefore, order of acquittal of the court below passed u/s.255(1) Cr.P.C. is set aside. Now regarding the sentence. If there is a real inclination for the accused to wipe off the liability which is due from him, I am inclined to show leniency in the matter of sentence. It will be sufficient if I sentence the accused to suffer simple imprisonment till the raising of the court and pay a compensation of Rs.2,30,000/- and on default of it, he shall undergo simple imprisonment for a period of 2 months. When the amount is paid or realised, let it be disbursed to the complainant on appropriate application. The accused herein is directed to appear before the court below for receiving the sentence and for payment of compensation on 15.9.2009. M.N.KRISHNAN, JUDGE ami.