IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 CRL.A.No. 682 of 2003() ----------------------- CC.401/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT: ----------------------------------------------- N.BHASKARAN NAIR, BHAGEERATHAN, T.C.42/961 (2), SREEVARAHAM, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. BY ADV. MR.BIJU KURIAKOSE RESPONDENT(S): ACCUSED/RESPONDENT: ---------------------------------------------------------------- 1. NOORJAHAN W/O. PEERU MOHAMMED, T.C. 49/232-2, PRA-122, KAMALESWARAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. MR.B.SATHIQ R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 682 OF 2003 = = = = = = = = = = = = = = = Dated this the 21st day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Thiruvananthapuram in C.C.401/98. It was a case u/s 138 of the Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.80,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of payment stopped. A statutory notice was issued and it is returned as 'unclaimed'. Thereafter prosecution has been launched. 2. It is the case of the defence that no proper notice has been issued and therefore an action will not lie. The learned trial judge after a consideration of the entire materials found that it has not been properly addressed and therefore held that the statutory mandate u/s 138 of the Negotiable Crl. Appeal NO. 682 OF 2003 -:2:- Instruments Act has not been complied with. It is against that decision the complainant has come up in appeal. I did not have the assistance of both the lawyers and therefore I had perused the documents, evidence and the judgment and proceed to dispose of the matter. It is the case of the complainant that the accused had borrowed a sum of Rs.80,000/- and towards the discharge of the liability had issued the cheque. 3. Now the point on which the court below has acquitted the accused is that no notice had been sent. The notice had been addressed to one Smt. Noorjahan w/o Peeru Mohammed T.C.49/423-2 and PRR 122 Kameleswaram, Thiruvananthapuram. The husband of the accused as DW1 would contend that it is not the proper address. He had deposed before court that house No. is T.C.49/328 and his name is Shahul Hameed and not Peeru Mohammed. On the contra it is submitted that the Residrent's Association had given a number to the house therein and that No. is PRA 122. Crl. Appeal NO. 682 OF 2003 -:3:- 4. The question of law that arise for determination is regarding the sufficiency of notice. The Hon'bel Supreme Court in the decision reported in Alavi Haji v. Muhammed (2007 (3) KLT 77) had held that “where payee despatches notice by registered post with correct address of drawer of cheque, principle incorporated in S.27 of General Clauses Act would be attracted. Or in other words if a notice is addressed in the proper address then the presumption would arise u/s 27 of the General Clauses Act. Now, the factual question is whether a notice has been properly addressed. The evidence of PW1 who is none other than the husband of the accused would show that he does not remember the address of the accused. So his evidence is not of much avail. 5. PW2 is a chance witness who according to him had come to collect some amount from the houses and at that time he saw the transaction. This witness is able to say the address of the accused. He knows the complainant, according to him for the last 20 years but he does not know his address. So here is a witness who is very familiar to the complainant Crl. Appeal NO. 682 OF 2003 -:4:- and who does not know the address of the complainant but knows the address of the accused. I am not prepared to accept his evidence. Now the factual circumstances is very suspicious to hold that he had been available there. 6. PW3 is the postman of the said post office. He would depose that he had tendered the letter and as it was locked he had returned it and therefore intimation has been given as 'unclaimed. According to him he looks into the T.C. No. He has very categorically said that the name of the husband of the accused is Peeru Mohammed. But when it is asked that is it not Shahul Hameed, he has no answer to be given. It has to be stated that the endorsement only shows unclaimed and it does not also very much help the Court. 7. Now the accused had produced an extract of the ration card. Original was produced before court. A certified copy after verification was marked as Ext.D1. It would show that the name of the husband of the accused as Shahul Hameed and not Peeru Mohammed. The house No. is 49/328 and not 49/323. So these two factors convincingly establish Crl. Appeal NO. 682 OF 2003 -:5:- one point that the letter has not been addressed in the proper address. Unless a letter is sent to the accused in his proper address the presumption that is available u/s 27 of the General Clauses Act does not apply. So in the light of the pronouncement of the Apex Court on that point it is to be held that the complainant has not succeeded in proving that he has issued a proper notice. U/s 138 of the Negotiable Instruments Act what is contemplated is a notice in writing and it must be to a proper person in a proper address. Therefore I cannot find fault with the court below in arriving at a decision that the notice is not proper and the accused is entitled to an acquittal. Therefore there are no grounds to interfere with the decision rendered by the court below. Hence the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 682 OF 2003 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 682 OF 2003 = = = = = = = = = = = J U D G M E N T 21st August, 2009