IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 CRL.A.No. 1447 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.513/2004 Dated 16/08/2004 CC.762/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT(S): COMPLAINANT: -------------------------- M.V. THOMAS, MUNDADDAN HOUSE, ANGAMALY. BY ADV. SRI.C.D.JOHNY SRI.P.SHAIJAN JOSEPH RESPONDENT(S): ACCUSED: ----------------------- 1. K.V. ANTU, S/O. VARGHEESE, KOORAN KALLOOKKARAN VEEDU, ANGADIKADAVU, ANGAMALY P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.C.A.CHACKO FOR R1 SMT.C.M.CHARISMA FOR R1 SMT.SONIYA.M FOR R1 R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON 09/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1447 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C No. 762 of 1999 on the file of Judicial First Class Magistrate Court -II, Aluva. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of N.I. Act. 2. The case of the complainant is briefly as follows. The accused borrowed a sum of Rs.45,000/- from the complainant and in discharge of the said amount, he issued a cheque for Rs.45,000/- drawn on Angamaly Service Co- operative Bank Ltd. When the cheque was presented for collection, the same was dishonoured for want of sufficient funds in the account of the accused. Therefore the complainant issued a notice to the accused calling upon him Crl.A. No. 1447 of 2004 2 to pay the amount due under the cheque. Eventhough the accused had intimation regarding the notice, he deliberately unclaimed it. He had not paid the amount also. Therefore the accused has committed the offence under Section 138 of the N.I. Act. 3. In the Magistrate Court, on the side of the complainant Pws.1 and 2 were examined and Exts.P1 to P6 were marked. On the defence side, DW1 was examined and Exts. D1 and D2 were marked. The learned Magistrate, on considering the evidence, found that Ext.P1 cheque was issued by the accused to the complainant for the discharge of an amount legally due and that it was dishonoured for want of sufficient funds in the account of the accused. But the accused was acquitted under Section 255(1) Cr.P.C. on the ground that notice was not issued in the correct address of the accused. Against that judgment of acquittal, the complainant filed this appeal. Crl.A. No. 1447 of 2004 3 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that Ext.P6 registered notice was issued in the correct address of the accused. But the accused deliberately unclaimed the notice. The learned counsel further submitted that the father of the accused is also known as 'Laly Varghese' in the locality and in order to prove the above fact, the appellant had examined PW2, a resident of that locality. The learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and therefore the Court below ought to have convicted and sentenced the accused under Section 138 of the N.I. Act. The learned counsel for the first respondent supported the judgment of the Court below. Crl.A. No. 1447 of 2004 4 6. The complainant was examined as PW1. He deposed that on 25.5.1999 the accused borrowed Rs.45,000/- from him and when he demanded back that amount, the accused issued Ext.P1 cheque for that amount. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Exts.P2 and 3 are the memos issued from the banks. PW1 sent a lawyer notice to the accused, which was refused by the accused. PW1 deposed that inspite of the notice, the accused did not repay any amount. Ext.P4 is the copy of the lawyer notice and Ext.P5 is the postal receipt. Ext.P6 is the returned notice. 7. In cross examination, PW1 denied the suggestion from the defence side that the amount borrowed by the accused was repaid. As observed by the learned Magistrate, nothing is brought out by the accused to discredit the testimony of PW1. Since Crl.A. No. 1447 of 2004 5 execution of Ext.P1 is proved, the presumption under Sections 118 and 139 of the N.I. Act would apply and it is for the accused to rebut that presumption. The fact that Ext.P1 cheque was dishonoured for the reason of insufficiency of funds in the account is practically admitted by the accused. Therefore, the learned Magistrate is fully justified in finding that Ext.P1 cheque was issued by the accused to the complainant in discharge of the amount legally due and that the cheque was dishonoured due to insufficiency of funds. 8. The next question to be considered is whether the complainant sent notice under Section 138(b) of the N.I. Act. Ext.P6 is the registered notice sent to the accused, which was returned with the postal endorsement 'unclaimed'. The address of the accused shown in Ext.P6 reads as follows: “K.V. Antu, S/o.Laly Varghese, Kooran Kallookaran, Angadikadavu, Angamali Crl.A. No. 1447 of 2004 6 P.O.” The accused contended that the name of his father is 'Varghese' and not 'Laly Varghese'. Ext.D1 is the Election identity card, and Ext.D2 is the copy of the ration card showing that the name of the father of the accused is Varghese. PW2, who is a resident of the locality, deposed that the father of the accused is also known by the nick name 'Laly Varghese'. There may not be any document to prove the nick name. In the election identity card and in the ration card usually the original name will be shown. 9. When the accused was examined as DW1 he deposed that there are other persons in the locality by name 'Antu K.V.'. But DW1 does not depose that the house name of those persons is the same as that of DW1. In identifying an addressee usually the name of the person with house name and name of place and post office would be sufficient. There is no necessity to write the name of the father. Crl.A. No. 1447 of 2004 7 10. In the decision reported in Ravi v. Ayyappa Roller Four Mills Ltd. (2009 (1) KLT 335), this Court held that to draw the presumption of service of notice on accused, there should be evidence that address in which the notice was sent is the correct address. In the decision reported in C.C. Alavi Haji v. Palapetty Muhammed and another ((2007) 6 SCC 555), it was held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. 11. In the decision reported in South Indian Bank Ltd. v. Union of India (2010 (4) KLT 657) it was held that it is well settled that when a notice sent by registered post is returned 'unclaimed', it could very well be treated as 'valid' and proper notice. Crl.A. No. 1447 of 2004 8 12. In the present case, in Ext.P6 registered notice there is no endorsement by the postal authority showing that the address of the accused shown in that notice is incorrect. Since that notice was returned with the endorsement 'unclaimed', I am of the view that there is valid notice as contemplated under Section 138(b) of the N.I. Act. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, he is convicted for that offence. 13. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over t he punitive aspect. Crl.A. No. 1447 of 2004 9 Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.50,000/- would meet the ends of justice. 14. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 762 of 1999 on the file of the J.F.C.M. Court - II, Aluva under Section 255(1) is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.50,000/- The said fine shall be paid to the appellant as compensation under Section 357 (1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the Crl.A. No. 1447 of 2004 10 aforesaid period, she shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm