IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 CRL.A.No. 889 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.59/2004 Dated 04/03/2004 CC.1335/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... APPELLANT(S): COMPLAINANT. -------------------------- PRAKASH, S/O.NARAYANANKUTTY, PLAVINTHOTTATHIL HOUSE, KIZHAKKE CHALAKUDY VILLAGE KUDAPUZHA. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENTS:ACCUSED & STATE ADDL. 2ND RESPONDENT. ------------------------------------ 1. VENU MULLAPPILLY, MULLAPPILLY HOUSE, KIZHAKKUMMURI VILLAGE, CHETTARIKKAL DESOM. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.P.M.RAFIQ FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON 20/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 889 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 1335 of 2000 on the file of the Judicial First Class Magistrate Court, Chalakkudy. 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 the N.I. Act. 2. Briefly the case of the complainant is as follows. The accused borrowed an amount of Rs.1,50,000/- from the complainant. When the complainant demanded the money back, the accused issued a cheque drawn on the Chalakudy branch of the Canara Bank Ltd. The complainant presented that cheque for collection. It was dishonoured on the ground of insufficiency of funds in the account of the accused. The complainant sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. The notice was served Crl.A. No. 889 of 2004 2 on the accused. But he did not reply to the notice and did not pay the amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, Pws.1 and 2 were examined and Exts.P1 to P5 were marked. On the defence side, one Rajesh was examined as DW1. The learned Magistrate, on considering the evidence, found that the complainant has failed to prove that he sent notice to the accused intimating the dishonour and demanding payment of the amount as laid down under Section 138(b) of the N.I. Act and the accused was found not guilty of the offence and he was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the court below failed to properly consider the relevancy of Exts.P4 and P5. Exts.P4 and P5 clearly show that a legal notice was sent by registered post to the accused. The learned counsel for the appellant submitted Crl.A. No. 889 of 2004 3 that the address of the accused shown in the complaint and in Ext.P4 notice are one and the same. The learned counsel further submitted that the complainant need not send the notice in the address of the accused maintained in the bank since the same will not be known to the complainant. The legal requirement is that the notice should be sent in the correct address by registered post, which the complainant had perfectly done. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., he stated that he owed no money to the complainant. One of his relatives, one Rajesh, borrowed Rs.1,75,000/- from the complainant. As a security for the transaction, Rajesh executed a sale deed for 31 cents of land in favour of Mohana Sharma. The complainant insisted for other securities. The accused issued a blank cheque to the complainant as security for the loan obtained by Rajesh. The complainant later sold the property to another person. The complainant misused the cheque and filed a false complaint. Crl.A. No. 889 of 2004 4 7. Rajesh was examined as DW1. He deposed that on 28.11.1998 he purchased a bus. He approached PW1/complainant for a loan. He borrowed Rs.1,75,000/- from PW1. As a security for the said amount, PW1 insisted for the cheque of the accused also. The accused had no liability towards the complainant. In cross examination, DW1 deposed that he borrowed the money from PW1. 8. The complainant was examined as PW1. He deposed that the accused borrowed Rs.1.5 lakhs from him. The accused issued Ext.P1 cheque. It was issued to discharge the liability. In cross examination he deposed that he knew Mohana Sharma, who is his neighbour. He denied the suggestion that he lent Rs.1,75,000/- to Rajesh. He also denied the suggestion that Rajesh transferred 37 cents of land in the name of Mohana Sharma as security for the money. He also denied the suggestion that he transferred the property of Rajesh and realised the money due to him. The money was lent in December, 1999. 9. PW2 is an independent witness, who interfered in the dispute between the complainant and the accused. PW2 deposed that the Crl.A. No. 889 of 2004 5 accused approached him with the notice with a request to settle the dispute between the complainant and the accused. The learned Magistrate appreciated the evidence in the following manner. Ext.P1 cheque contains the signature of the accused. The evidence of Pws. 1 and 2 show that the accused owed money to the complainant. The defence case that the cheque was issued as a security for the liability of Rajesh does not carry much weight. It is admitted by DW1 that PW1 realised the money by selling the property. There is no explanation from the accused or DW1 why the cheque remained with the complainant. In the absence of sufficient explanation, the evidence of Pws. 1 and 2 show that the accused owed money to the complainant. There is no reason to disbelieve PW1. 10. The learned Magistrate, on considering the evidence, found that the accused issued Ext.P1 cheque in discharge of a liability due to the complainant and the accused has no case that there was sufficient amount in his account to encash Ext.P1 cheque. Crl.A. No. 889 of 2004 6 11. As observed by the learned Magistrate, the main dispute is with regard to service of notice to the accused. When the complainant was examined as PW1, he stated that the postal acknowledgment signed by the accused is produced and marked as Ext.P6. But on perusing the records, it is seen that no such postal acknowledgment was produced or actually marked in the case. There is no dispute with regard to the name of the accused. In the bank records of the accused produced from the bank as per the order of the learned Magistrate, the address of the accused is given as S.T.S., o/o the Sub Divisional Officer, Telegraphs, Chalakudy. In that bank records house address of the accused is not given. 12. PW2 deposed that his father was working in the Post and Telegraph Office at Chalakkudy and at that time the accused was also working in that office. PW2 deposed that the accused approached him with the notice sent by the complainant in order to settle the case between the complainant and the accused. Crl.A. No. 889 of 2004 7 13. In the complaint the address of the accused is given as 'Venu Mullappally, Mullappally house, Kizhakkekkari village, Chettarikkal desom. In Ext.P4 notice and Ext.P5 postal receipt, the same address is given. In the Vakalath filed by the accused also the same address is given. The accused has not produced any document to show that his house address shown in the complaint and in Ext.P4 notice is incorrect. 14. In the decision reported in Alavi Haji v. Palapetty Muhammed (2007 (2) KHC 932)(SC) it was held that: “When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issuance of notice in terms of clause (b) of proviso to Sec. 138 of the Act stands complied with.” In the same decision it was further held that: “Any drawer who claim that he did not receive the notice sent by post, can, within 15 days of receipt of Crl.A. No. 889 of 2004 8 summons from the Court make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons.” 15. In the decision reported in Ravi v. M/s. Ayyappa Roller Floour Mills Ltd. (2009 (1) KHC 406) it was held that: “The burden is on the complainant to show that notice was sent in the correct address by registered post. Service of notice can be presumed if notice is not received back. Whether acknowledgment card is received back or not is of little importance.” In the present case, summons was issued in the address shown in the complaint and the accused appeared and filed Vakalath. The registered notice was sent to the accused in the same address. Therefore it can be presumed that there was proper service of notice as contemplated under Section 138(b) of the N.I. Act. Since the complainant has proved all the ingredients of the offence under Crl.A. No. 889 of 2004 9 Section 138 of the N.I. Act, the learned Magistratt 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. 16. 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 the 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.1,50,000/- would meet the ends of justice. 17. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 1335 of 2000 on the file of the Judicial First Class Magistrate Court, Chalakkudy 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.1,50,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Crl.A. No. 889 of 2004 10 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, he shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm