IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.A.No. 593 of 2003(A) ----------------------------------- CC.384/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, NADAPURAM .................... APPELLANT/COMPLAINANT: ---------------------------------------- A.T. NANU, AALATHAREMMAL HOUSE, VALAYAM POST, KALLACHI VIA, VADAKARA. BY ADV. MR.DEEPU THANKAN. RESPONDENTS/ACCUSED & STATE: ---------------------------------------------------- 1. V. RAJAN, VILAKKOTTOOR POST, TOOVAKKUNNU VIA, THALASSERY, KANNUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 593 OF 2003 = = = = = = = = = = = = = = = Dated this the 20th 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, Nadapuram in C.C.384/01. It was a complaint filed u/s 138 of the Negotiable Instruments Act and the Court below acquitted the accused. It is against that decision the complainant has come up in appeal. 2. The points that arise for determination in the appeal are; (1) Whether there are materials to hold that the accused has committed the guilt u/s 138 of the Negotiable Instruments Act? (2) Is there anything to interfere with the decision rendered by the Court below? Points: 3. Heard the learned counsel. It is the case of the Crl.A. No. 593 OF 2003 -:2:- complainant that himself and the accused were friends and they were residing in one room in a flat in Quatar. According to him when the accused was about to leave for India in March, 1998 he requested to lend a sum of 10,000/- Rials. He had promised to repay it and on that understanding the complainant had advanced 8,500/- rials for which the complainant had issued a cheque for Rs.85,000/-. When the cheque was presented for encashment it was returned with the endorsement of insufficiency of funds. Two notices were issued, one to the Quatar address and the other to the local address. The notice issued to Quatar address did not come back whereas the other was returned stating that the accused is away at gulf country. The Court below analysed the evidence of PWs.1 and 2 and arrived at a decision that the case is not proved. 4. It is the case of the defence that the complainant is a money lender by profession and the accused introduced one Shankaran to the complainant for the purpose of loan and at that time when some amount was advanced a blank cheque Crl.A. No. 593 OF 2003 -:3:- was taken from the accused as security and that he had not borrowed any amount from the complainant. PW1 is the complainant. Though they claimed to be residing in the same flat for a period of four years when a question was put to the complainant that the accused was working in Amtco trading company he pretends ignorance. When another question was put whether the letters were addressed to in the official address of the accused, he denies the same. He does not know whether the accused was available in the native place at the time of issuance of Ext.P4. He has not produced any document to show that the address shown in Ext.P5 is correct address in the gulf country. He would further add, “................................................................................ .................................................................................. The learned Magistrate referred to a very important factor that the accused had opened an account in the Bank on 12.6.95. He was given a cheque together with leaf numbers 480711 to 480720. The disputed Ext.P1 cheque is the first cheque. It is also brought out that the cheque leaf bearing No.450718 was Crl.A. No. 593 OF 2003 -:4:- presented for encashment in August, 8th 1997, and the cheque was dated 5.7.97. So the 18th cheque leaf in the cheque book was presented as early as on 8.8.97. How can the first cheque of 480711 be issued in April, 1998. One cannot say that deliberately that cheque leaf is left and only other cheques were issued for the reason that one cannot envisage such a situation in 1997 that he is going to borrow some amount in March or April 1998. That is why it is often said that 'men may lie but circumstances will never lie'. So the circumstance is a strong evidence to show it against the case of the complainant. 5. Now regarding the notice. It is to be stated that one notice was admittedly issued by the complainant to his home address knowing that he was not there. In the evidence also he has admitted he does not know whether the accused was in in his native place. Then the learned Magistrate has referred to the notice issued to the address in the gulf country. Ext.P5 the Post Box Number is given as 30190 Doha Qatar. Ext.P7 is a document summoned and proved on the side of the Crl.A. No. 593 OF 2003 -:5:- complainant. Even as per that document the Post Box No. of the accused is seen as 30524 Doha quarter. So the correct address of the accused found as per the document produced by the complainant is 30524 Doha, Qatar. But the letter is addressed to Post Box No.30190 Doha, Qatar. So the letter is not addressed to a proper address. 6. The Hon'ble Apex Court in the decision reported in Alavi Haji v. Muhammed (2007 (3) KLT 77) 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”. So in order to draw a presumption u/s 27 of the General Clauses Act it is imperative to send the letter in the correct address. Here admittedly two notices are issued, one notice to a person knowing that he was not there and secondly in a wrong address. So the question of presumption u/s 27 of the General Clauses Act cannot be attracted. 7. Under S.138(b) of the Negotiable Instruments Act, in order to initiate a prosecution a notice has to be given in Crl.A. No. 593 OF 2003 -:6:- writing. So here the notice is only given in a wrong address. So it does not comply with the statutory requirements. So from the materials available it is seen that the evidence is lacking to prove the execution of the cheque towards the discharge of the liability and it is also bad for proper notice u/s 138(b) and therefore the order passed by the learned Magistrate is perfectly in order and it does not call for any interference. Therefore the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. No. 593 OF 2003 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 593 OF 2003 = = = = = = = = = = = J U D G M E N T 20th August, 2009