IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 364 of 2003() ----------------------- CRA.631/2001 of II ADDL.SESSIONS COURT, ERNAKULAM CC.52/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .......................................................................... APPELLANT(S): 1ST RESPNDT. IN THE CRA.631/01 & COMPLNT. IN CC 52/98 ------------------------------------------------------------------------------------------------------------ V.D.FRANCIS, S/O.DEVASSY, VAZHAPPILLY HOUSE, ST.BENEDICT ROAD, COCHIN - 18. BY ADVS. SRI.PETER THARAKAN SRI.JIJO THOMAS RESPONDENT(S): APPLNT. IN CRA 631/01 & ACCUSED IN CC 52/98 ----------------------------------------------------------------------------------------------- 1. CLEETUS XAVIER, S/O.VINCENT, CHAKKATTIL HOUSE, CHANGAMPUZHA NAGAR P.O., COCHIN -33. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.C.S.MANU FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.364 OF 2003 -------------------------- Dated this the 8th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the judgment rendered by the Second Additional Sessions Court, Ernakulam in Crl.A.631/01. It was against the conviction and sentence passed in C.C.52/98 by the Addl. Chief Judicial Magistrate, Economic Offences, Ernakulam, this appeal was preferred. The trial court found the accused guilty and convicted him for the offence u/s.138 of Negotiable Instruments Act. He was sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.75,000/- and in default to undergo simple imprisonment for a period of 2 months. The appellate court held that there was no proper notice as contemplated u/s.138 of Negotiable Instruments Act and therefore held that the prosecution is defective and acquitted the accused. It is against that decision, the complainant has 2 CRL.A.No.364 OF 2003 come up in appeal. The points that arise for determination are, 1.Whether the finding of guilt against the accused u/s.138 of Negotiable Instruments Act is correct ? 2.Whether the notice is proper ? 3.Is there anything to interfere with the judgment rendered by the Sessions Judge ? 2. Points 1 to 3 :- It is the case of the complainant that the accused, towards the discharge of the liability in a kuri transaction had issued a cheque for Rs.70,000/- which when presented for encashment returned with endorsement `account closed' and thereafter the notice was issued which returned without service and thereafter the prosecution has been initiated. The defence had not admitted the transaction and so the courts below had considered the evidence of PW1 and DW1 and Exts. P1 to P8. The document that is mainly relied upon, to prove the transaction is Ext.P7. It is stated that it is on the basis of Ext.P7, the cheque Ext.P1 happened to be issued and therefore Ext.P7 would prove the liability and Ext.P1 would 3 CRL.A.No.364 OF 2003 establish that the cheque is issued towards the discharge of the liability. I had perused Ext.P7. It is an agreement alleged to be executed between the complainant and the accused on 8.3.95 and the terms of the agreement would indicate that the accused did owe an amount of Rs.70,000/- to the complainant and towards the discharge of the sum he had issued a cheque. The stamp paper is in the name of the complainant and it bears the seal of the District Stamp depot on 24.2.95. It is also discussed by the court below that, PW1 admitted the filing of a complaint against the accused before the police and as instructed by them had agreed to settle the matter for Rs.70,000/-. Ext.P7 is attempted to be attacked on the ground that, it is vitiated by coercion and threat. When an execution of the document is admitted and it is attacked on the basis of threat and coercion it is for the party, who puts forward that claim to establish that factum. Here, no materials are available to hold that any sort of threat or coercion is behind the execution of Ext.P7. Further the matter has been considered by two courts and they had not 4 CRL.A.No.364 OF 2003 found against the execution of Ext.P7 and the appellate court has observed that there is nothing to show that there was threat or coercion and it enters into a finding that "there is nothing to interfere with the finding of the lower court that the cheque was issued for consideration and not under threat or coercion." So in this case, I do not propose to interfere with the concurrent findings on facts rendered by the court below. 3. The major question now is regarding the notice. Under S.138 of N.I.Act, it is mandatory that in order to initiate a prosecution, a notice in writing has to be given. There had been various disputes and decisions are rendered regarding the validity of the notice. Now the trump card of the accused in this case is regarding the fact that, in the address shown in the notice, the name of the father of the accused is shown as Xavier, whereas even as per the S.S.L.C. book, the name of the father is Vincent. So it is contented that, the notice is not properly addressed and therefore it is not a proper notice in writing. Ext.P6 is the disputed notice, which is addressed to 5 CRL.A.No.364 OF 2003 Sri.Cleetus, S/o.Xavier, Chakkattil house, Changampuzha Nagar, Kochi. The endorsement on the back of the notice is that, `the addressee left, returned to sender'. On the front page of Ext.P6, there is an endorsement of `unclaimed'. The accused has examined the postman, who was entrusted with the task of servicing the notice. He had deposed before the court that, he had made the endorsement `addressee left, returned to sender'. He would also depose that, since the addressee has left the place and the addressee is not known, he was forced to send it back. He would further depose that, the endorsement `unclaimed' is not endorsed by him. In the cross examination he had admitted that, the addressee has not informed about the change of address in the post office. He would assert that when enquired in the house, it was revealed that he was residing in that address. “Ext.P6 6 CRL.A.No.364 OF 2003 So there was nothing in the mind of the postman, who attempted to make the service to the accused and he did not have any doubt of identity of the person, but the notice could not be served for the reason that, he did not have the present address of the addressee. It has also to be remembered that, in the complaint the address shown and what the accused gave is the same and it was in that address the summons was issued by the court and the Police Constable who had visited the house, had served the notice on the accused in that address. It is also interesting to note, about the vakalath. In the vakalath, for the reasons best known to the persons responsible, the name of the father of the accused is left blank. So the reading of the evidence would make it crystal clear that the effect of service could not be done, on account of the non availability of the accused in that address. The postman did not have any doubt regarding the identity of the person. The identity can not be disputed for the reason that, it is in the very same address where the notice is issued and the complaint is filed and it is in 7 CRL.A.No.364 OF 2003 that address, the addressee is served by the police recently. Further the evidence of DW1, who is examined by the accused, would establish that the inmates of the house have informed that, the accused was residing in that house. Just because there is some confusion thrown in the mind of the court regarding the name of the father, it shall not militate against the complainant if that notice could have been served and if the accused had been present there. It is also to be remembered that the case of the accused is to the effect that, he was away from the place between 1995 and 1996 and that is why he could not be served. Now we will go to the position of law. From these discussions, it is very clear that if the addressee had been in the place, with the very same address, the accused could have been served. Or in other words, that was a sufficient address, which was necessary to serve the notice on the accused. When it is so, I may refer to the decision rendered by the Honourable Apex court in the decision reported in [2007(3) KLT 77 S.C.] Alavi Haji V. Muhammed. It is stated in that 8 CRL.A.No.364 OF 2003 case that, `where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in S.27 of the General Clauses Act would be attracted;.... '. The apex court even went to the extent of stating that, a person who does not pay within 15 days of receipt of summons from court, along with the copy of complaint, can not obviously contend that there was no proper service of notice, which is required under S.138 of N.I.Act, by ignoring statutory presumption to the contrary u/s.27 of the General Clauses Act and S.114 of the Evidence Act. It is also a well settled principle that, when the person leaves the place it is incumbent upon him to inform the postal authorities his address and the absence of the same, it could not be taken as a ground, to cut at the prosecution launched under S.138 of N.I.Act. Therefore I am totally convinced that, the address shown in the notice of Ext.P6, was sufficient to serve a notice on him, had he been in the place and as he had left the place, without giving his new address it satisfies the mandate u/s.138 of N.I.Act and the 9 CRL.A.No.364 OF 2003 prosecution can not be defeated on that ground. I disagree with the finding of the learned Sessions Judge and reverse the finding of acquittal. So from these discussions, I hold that the accused is proved to be guilty u/s.138 of N.I.Act and the notice had been issued as contemplated u/s.138 of N.I.Act and there is substantial compliance of the statutory requirement for the prosecution under the said Act. So he is found guilty u/s.138 of N.I.Act. 4. Now turning to the question of sentence. The trial court has convicted him for a period of 6 months and to pay a fine of Rs.75,000/-. I am afraid that the Trial court had imposed a heavy punishment and it requires leniency. Now as per the amended provisions of N.I.Act, any court of competent jurisdiction is entitled to levy double the amount of cheque as fine and therefore atleast justice can be met by directing the accused to pay the cheque amount involved in this case as fine. Therefore I alter the sentence to one of fine only, instead of imprisonment and fine. 10 CRL.A.No.364 OF 2003 5. In the result, the criminal appeal is allowed and the accused is found guilty u/s.138 of N.I.Act. He is sentenced to pay a fine of Rs.75,000/- and on default of which he has to undergo simple imprisonment for a period of 2 months. If the amount is realised, then the trial court is directed to disburse the amount to the complainant on proper application. The accused shall pay a fine on or before 30.9.09, failing which the lower court shall execute the sentence. If any amount has been paid to the complainant and if it is proved, only the balance amount need be recovered as fine. M.N.KRISHNAN, JUDGE ami.