IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 CRL.A.No. 1402 of 2008() ------------------------ AGAINST THE JUDGEMENT IN CRLP.570/2008 CC.294/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- VALSALA KUMARI, W/O.PASUPALAN NAIR, AGED 47 YEARS, CHERIYAMPALLOOR VEEDU, KAVANADU P.O., KOLLAM-3. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): ACCUSED ---------------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. ABRAHAM GEORGE, GIRI VILLA, KUREEPUZHA, THRIKADAVOOR, PERINADU P.O., KOLLAM, HAILING FROM VADAKKEPURAYIL VEEDU, PERUMON P.O., PERINAD. BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, JUDGE ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. .Appeal No. 1402 OF 2008 ~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of February, 2009 JUDGMENT This is an appeal at the instance of the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act as he is aggrieved by the impugned judgment of the court below acquitting the accused under Section 255 (1) of Cr.P.C. 2. The case of the appellant/complainant is that towards the discharge of a debt of Rs.2,30,000/- the accused executed cheque bearing No. 458113 dated 18.7.2002 for Rs.1,10,000/- and another cheque bearing No. 488111 dated 25.7.2002 for Rs.1,20,000/-. When the above cheques were presented for encashment the same were returned for the reason 'funds insufficient'. On receiving the memos of dishonour of cheque, the complainant caused to sent a lawyer notice to the accused informing him regarding the dishonour of cheques and also demanding the payment with respect to the amount covered by dishonoured cheques within 15 days from the date of receipt of the notice. According to the complainant, the accused willfully refused to accept the notice, authorities returned those demand Crl. Appeal No.1402 of 2008 : 2 : notice stating 'unclaimed'. As no payment was made by the accused, the complainant approached the court and thereafter a full fledged trial was undertaken by the court which ultimately resulted in the impugned judgment. Going by the judgment, it can be seen that based upon the rival pleadings of the parties and the material produced before the court, the trial court has formulated 4 issues for its consideration and finally found that though the findings on issues 1 and 2 are in favour of the complainant, the finding under 3rd issue is against the complainant and accordingly court below found that accused is not guilty of offence punishable under Section 138 of the Negotiable Instruments Act and the accused is acquitted under Section 255(1) of Cr.P.C. The only ground for acquitting the accused is that no notice as contemplated by section 138 of the Negotiable Instruments Act was served on the accused and therefore found that the complainant has not succeeded in establishing an offence punishable under Section 138 of the Negotiable Instruments Act. It is the above finding and order of acquittal challenged in this appeal. 2. I have heard learned counsel appearing for the appellant. Though the notice was served on the second Crl. Appeal No.1402 of 2008 : 3 : respondent/accused he has not chosen to appear before this court or making arrangement to defend the appeal. 3. As indicated earlier, the trial court under point No.1 held that the complainant has succeeded in proving the execution Exts.P1 and P2 cheques on the part of the accused for discharging legally enforceable debt due to the complainant. It is also found that the complainant has succeeded in establishing prima facie case also and thereby he is entitled to get benefit of the presumptions under Section 118(a) and 139 of the Negotiable Instruments Act and accused is miserably failed to rebut the said presumptions. Thus, with all respect, except the service of demand notice, the finding of the court below was in favour of the complainant and therefore I am not going into the merits of those findings. 4.The learned counsel submitted, by producing Ext.P5 and Ext.P7(a) document and giving evidence as PW1 the complainant/appellant has discharged his burden in proving entire case against the accused. It is also the case of the counsel that Ext.P5 notice served on the accused by sending the same in correct address to the complainant. It is also pointed out by the learned counsel that at the time of the transaction the Crl. Appeal No.1402 of 2008 : 4 : accused was residing in the same address as shown in the impugned judgment. According to the learned counsel being the holder of the dishonoured cheque, the complainant need to establish that notice was sent in the correct address of the accused and if the complainant succeeded in proving that the demand notice sent in the correct address that is sufficient to serve the purpose. Therefore, according to the learned counsel the approach of the court below diametrically opposite to the settled position of the law regarding the service of notice especially under Section 138(b) of Negotiable Instruments Act. 5. Paragraph 11 of the judgment of the trial court deals with the issue. It is observed that “here in this case Ext.P6 would show that since the addressee unclaimed it was returned to the sender on the part of the postal authorities. Accused has no such case that the notice was sent to him in correct address. So it has to be proved that the notice was sent to the accused in the correct address and as he failed to receive the same, it was returned with an endorsement “unclaimed” on the part of the postal authorities. On going through the endorsement on Ext.P7 would show that the accused was not in his address, when Ext.P7 reached at the destination. It is stated in the postal cover Crl. Appeal No.1402 of 2008 : 5 : that addressee 'out of station' for 5 days”. On the basis of the above observations and discussions the court below pleased to held that 'if that be so the question has to be considered is that was there any intentional refusal of notice on the part of the accused and since there is no evidence from the side of the prosecution that the accused was intentionally evaded Ext.P7 notice it cannot be held that notice was served on the accused. 6. The above finding and approach of the court below is diametrically opposite to the dictum laid down by the Honourable Apex Court and also this Court. In the decision Bhavani Auto Distributors Vs. Muraleedharan (2007(3) KLT 392), this Court held that “sending of notice in the correct address of the accused and return of the same with an endorsement 'unclaimed' are sufficient for purpose of due compliance with Sec. 138(b) of the Negotiable Instruments Act”. The Division Bench of the Honourable Apex Court in the decision reported in Indo Automobiles Vs. Jai Durga Enterprises [2008(3) KLT 480 (SC)] held that “when notice is sent by registered post with acknowledgment due in correct address, it must be presumed that service has been made effective”. The three judges bench of the Honourable Supreme Court in the Crl. Appeal No.1402 of 2008 : 6 : decision reported in Alavi Haji Vs. Muhammed [2007(3) KLT 77 (SC)] held that “where payee dispatches notice by registered post with correct address of the drawer of the cheque, the principle incorporated in S.27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to S.138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque”. In the said decision, the Apex Court has also held that “S.27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement – Crl. Appeal No.1402 of 2008 : 7 : refused – or – not available in the house – or – house locked – or - shop closed – or addressee not in station –, due service has to be presumed (Vide Jagdish Singh V Natthu Singh, State of M.P. Vs. Hiralal & Ors. & Raja Kumari Vs. P. Subbarama Naidu & Anr.) It is, therefore, manifest that in view of the presumption available under S. 27 of the Act, it is not necessary to aver in the complaint under S. 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved”. On application of the above direction in the facts and circumstances involved in this case, it can be seen that the trial court is wrong in its finding under issue No.3 7. Going by the discussions in paragraph 11 of the impugned judgment it appears that trial court has not considered the legal position regarding the service of notice contemplated by provisions under Section 138 of the Negotiable Instruments Act . Even according to the trial court as per Ext.P6 notice was sent back as it was unclaimed. The trial court also found on the basis of Ext.P7 that the same reached at the destination. But, the accused was not available at the address and hence, there was an endorsement to the effect that Crl. Appeal No.1402 of 2008 : 8 : addressee is out of station for 5 days. On the basis of above factual position, the trial court has to reconsider its finding under point No.3, in the light of the above discussion and the authorities cited supra. Therefore, it is only just and proper to remand the matter for considering the question of service of notice on the accused and the consequential decision under point No.4 and the finding of the below under point No.1 and 2 are maintained. In the result, this appeal is allowed for enabling court below to take fresh decision regarding the question of service of notice on the accused and this consequential decision under point No.4 in the light of the above discussion and also on the basis of the dictum laid down by the Apex Court and this Court in the decisions cited supra. Thus the finding of the court below under point No.3 is set aside and matter is remanded back for fresh decision on the said question and consequential decision under point No.4. The parties are free to adduce evidence, if they so advised, in support of their contentions with respect to the question of service of notice. Thus, the complainant is directed to appear before the court below on 12.3.2009, on which date the court below is directed to take up the complaint on file, issue process to the accused to procure his Crl. Appeal No.1402 of 2008 : 9 : presence and thereafter to proceed with the complaint and to decide the issue on merits after hearing the parties. As the case pertained to the year 2003, the trial court is directed to expedite the trial as early as possible. V.K. MOHANAN, JUDGE kmd