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. 2034 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.580/2003 Dated 26/11/2003 ST.404/2000 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... APPELLANT: -------------- A K BALAN NAIR, S/O. NARAYANAN NAIR KATTIL PEEDIKAYIL HOUSE CHEVAYUR, CALICUT BY ADV. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. RESPONDENTS/ACCUSED: --------------- 1. V.KARUNAKARAN NAIR, THEMANI HOUSE P.O. KANNADIPOYIL, VIA BALUSSERY KOYILANDY TALUK, KOZHIKODE DISTRICT 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.P.S.SREEDHARAN PILLAI FOR R1 SRI.K.B.SAJEESH FOR R1 SRI.P.GOPINATH FOR R1 SRI.C.S.SUNIL FOR R1 SRI.P.R.SREEJITH FOR R1 PUBLIC PROSECUTOR, SMT. REKHA C NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON 9/12/2010 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No: 2034 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 404 of 2000 on the file of Judicial First Class Magistrate Court - I, Kozhikode. The first respondent herein was the accused in that case, which was filed by the complainant alleging the commission of an offence under Sec.138 of N.I. Act. 2. The case of the appellant/complainant is briefly as follows. The 1st respondent borrowed an amount of Rs.70,000/- from the appellant with a condition that he will repay the same within 3 months. But the 1st respondent did not return the amount as promised and to discharge the said debt, he issued a cheque bearing no.08821 dt.28.9.1999 in favour of the appellant for an amount of Rs.70,000/- drawn on Balusery Regional Cooperative Bank Ltd., Balusery. The appellant presented the cheque for collection Crl. Appeal No: 2034 of 2003 :2: through Central Bank of India, Cherooty Road branch, Calicut. But cheque was dishonoured due to 'funds insufficient' and returned along with accused bank memo dt.14.12.1999 which was received by appellant/complainant on 20.12.1999 and notice was issued to accused on 24.12.1999 which was returned unserved. The first respondent did not pay the amount and complaint under Sec.138 of N.I. Act was filed on 27.1.2000. 3. In the Magistrate Court on the side of the complainant PW1 was examined and Exts.P1 to P4 were marked. On the defence side DW1 and DW2 were marked and Exts.D1 to 6 were marked. The learned Magistrate on considering the evidence found that the complainant received Ext.P1 cheque from the accused to discharge a debt o Rs.70,000/-, but the accused was acquitted under Sec.255(1) Cr.P.C. on the ground that the complainant has not sent a notice to the accused in his correct address. Against that judgment of acquittal the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned Crl. Appeal No: 2034 of 2003 :3: counsel for the first respondent. 5. The learned counsel for the appellant submitted that the complainant sent a lawyer notice to the accused in the address of his wife's house, which was given by the accused in Ext.C1 account maintained by him. The learned counsel for the appellant submitted that the court below ought to have noted that a person can have several correct addresses. The statutory obligation as to the issuance of notice is discharged when notice was issued in the correct address. The learned counsel for the first respondent supported the judgment of the Court below. 6. The complainant was examined as PW1. PW1 deposed that the accused borrowed a sum of Rs.70,000/- from him on condition to repay the same within three months and when the accused did not repay the amount within that period, he demanded back the amount and 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 Crl. Appeal No: 2034 of 2003 :4: accused. Ext.P2 series are the memos issued from the banks. PW1 sent lawyer notice to the accused which was returned unserved. Ext.P3 series are the copy of the notice and postal receipt, Ext.P4 is the returned notice. Ext.C1 is the extract of the account of the accused. 7. The defence case is that the complainant misused a blank signed cheque given by the accused to PW1 when the accused borrowed money from DW1. 8. DW1 is the son-in-law of the complainant. But DW1 did not support the case of the accused. The learned Magistrate on considering the evidence arrived at a conclusion that the accused issued Ext.P1 cheque in favour of the complainant to discharge the debt of Rs.70,000/-. Even though the accused was examined as DW2, he was not able to rebut the presumption under Sec.118 and 139 of N.I. Act, which is in favour of the complainant. The accused did not dispute the fact that Ext.P1 cheque was dishonoured due to insufficiency of funds in the account of the accused. Crl. Appeal No: 2034 of 2003 :5: 9. The next question to be considered is whether the complainant has issued notice as contemplated under Sec.138(b) of N.I. Act. Ext.C1 is the copy of the extract of the account maintained by the accused in Balusery Regional Co-operative Bank Ltd., Balusery. In Ext.C1 the address given by the accused is V. Karunakaran Nair, Themani House, Kannadipoyil P.O. The date of starting of that account is given as 27.1.1995. In Ext.D1 election identity card, Ext.D2 ration card, Ext.D3 voters list, Ext.D4 wedding card, Ext.D5 receipt from Koilandi Co-operative Bank and Ext.D6 letter from Koilandy Rural Development Bank the address of the accused is given as residence in Karimpanaparambil. The complainant sent Ext.P4 registered notice in the address shown in Ext.C1. When the accused was examined as DW1, he admits that both the above addresses are coming within the same post office limit and that the post man personally knew him. The accused had not given any intimation to the bank regarding the change of the address. The postal endorsement in Ext.P4 shows that it was Crl. Appeal No: 2034 of 2003 :6: intimated on several days by the postal authorities and it was not returned as addressee not known or not residing. DW1 admits that he has not given intimation regarding the change of address. 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 Crl. Appeal No: 2034 of 2003 :7: 'unclaimed', it could very well be treated as 'valid' and proper notice. 12. Since Ext.P4 notice was returned due to the failure of the accused to claim. it can be presumed that there was sufficient notice. ince 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. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.75,000/- would meet the ends of justice. 14. Accordingly this appeal is allowed. The judgment of Crl. Appeal No: 2034 of 2003 :8: acquittal in C.C.No. 404 of 2000 on the file of the J.F.C.M. Court - I, Kozhikode 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.75,000/- 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 aforesaid period, she shall suffer S.I. for a period of three months by way of default sentence. M. L. JOSEPH FRANCIS ( Judge) dl/