IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 CRL.A.No. 1837 of 2004() ------------------------ CC.257/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... APPELLANT(S): COMPLAINANT ------------------------- BALAKRISHNAN, S/O.CHAMU, APPALAM, PERUVEMBA, PALAKKAD. BY ADV. SRI.V.G.ARUN RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. SUNITHA RADHAKRISHNAN, KAVASSERY, ALATHUR, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON 25/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1837 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 257 of 2002 on the file of the Judicial First Class Magistrate Court - II, Palakkad against the judgment of acquittal of the first respondent herein. The first respondent is the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act 2. The case of the complainant is briefly as follows. The husband of the accused owed an amount of Rs.19,000/- to the complainant towards the paddy purchased by him. When the amount was demanded, the accused issued a cheque for Rs.19,000/- dt.21.9.2001 drawn on the Kazhani Service Co- operative Bank, towards discharge of the debt. The said cheque was presented on 25.1.2002, but it was dishonoured due to Crl.A. No. 1837 of 2004 2 insufficiency of funds in the account of the accused. The intimation in this regard was received by the complainant on 11.2.2002. The complainant sent a lawyer notice on 14.2.2002 to the accused. But the notice was returned with an endorsement 'not known'. The amount demanded was not paid by the accused and hence the complaint was filed. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P5 were marked. No evidence was adduced from the side of the accused. The learned Magistrate, on considering the evidence, found that the cheque was issued towards the discharge of a legally enforceable debt, but acquitted the accused under Section 255(1) Cr.P.C. holding that statutory notice was not served on the accused. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned Public Prosecutor. Crl.A. No. 1837 of 2004 3 5. The learned counsel for the appellant invited my attention to the decision reported in Indo Automobiles v. Jai Durga Enterprises (2008 (3) KLT 480 (SC), in which it was held that once notice has been sent by registered post with acknowledgment due in correct address, it must be presumed that service has been made effective. In the decision reported in Joseph Jose v. Baby (2002 (3) KLT SN 46 Case No. 64) it was held that sending of notice in the correct address of the accused and return of the same with endorsement 'unclaimed' are sufficient for the purpose of due compliance with S.138 (b) of the N.I. Act. Burden to prove non-tender of the article is on the accused. The learned counsel for the appellant relying on the above decisions argued that the court below ought to have found that the appellant/complainant had discharged his burden by sending the notice in the correct address. 6. Section 138 of the N.I. Act makes it clear that dishonour of the cheque by itself does not give rise to a cause of action because Crl.A. No. 1837 of 2004 4 payment can be made on receipt of notice of demand contemplated in clause (b) of Section 138 and in that event there is no offence. 7. One of the main contentions raised by the accused in the present case is that she did not receive any notice under Section 138(b) of the N.I. Act and she was not having the knowledge of any such notice. The endorsement on Ext.P5, which is the registered cover containing the notice sent by the complainant to the accused, shows that the Postman made enquiry regarding the addressee on 15.2.02, 16.2.02, 18.2.02, 19.2.2002, 20.2.02 and 21.2.2002 and since the addressee was not known it was returned to the sender. It is contended by the accused that since there is no residential address on Ext.P5, the addressee could not be found out and so it was returned with an endorsement 'not known'. The address shown in Ext.P5 cover is “Sunitha Radhakrishnan, W/o. Radhakrishnan, Kavassery amsom, Kavassery, Alathur Taluk. The name of the house or house number in which the accused is residing are not shown in Ext.P5. Crl.A. No. 1837 of 2004 5 8. When the complainant was examined as PW1, he deposed that he does not know the house name of the accused and he does not know the name of the father of the accused. 9. Learned counsel for the appellant submitted that the summons in the complaint was served on the accused in the same address as shown in Ext.P5. The records would show that twice summons was ordered to the accused and as per order to issue summons on the second time by registered post it was served on the accused. PW1 would depose that the house of the accused is at the western side of Kavassery bus stop. But in the address given in Ext.P5, it is not mentioned that the accused is residing near Kavassery bus stop. Since the endorsement in Ext.P5 shows that the Postman could not know about the addressee, the rulings relied on by the counsel for the appellant are not applicable to the facts of this case. 10. In this case there is no evidence to show that the address shown in Ext.P5 notice is the correct address of the accused. In the Crl.A. No. 1837 of 2004 6 absence of such evidence, it is not possible to hold that proper statutory notice was served on the accused. Therefore, the learned Magistrate is fully justified in finding that the accused cannot be found guilty of the offence punishable under Section 138 of the N.I. Act. 10. Accordingly this appeal is dismissed, as it is without any merits. (M.L. JOSEPH FRANCIS) Judge tm