IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.Rev.Pet.No. 2630 of 2009() ------------------------------ CRA.297/2007 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI S.T.No.1258 of 2006 of JUDICIAL FIRST CLASS MAGISTRATE, NILAMBUR .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- THORAKATH ABDUL RAZACK, S/O.MUHAMMED, THORAKATH HOUSE, SHEENA QUARTERS, VADAPURAM P.O., NILAMBUR VIA., MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------- 1. K.SARADA, MURALI VIHAR, MANALODI ROAD, NILAMBUR P.O., MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, COCHIN-682031. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2630 of 2009 --------------------------------------- Dated this 13th day of August 2009 ORDER Could the presumption of deemed service of notice be drawn if the addressee went abroad without informing change of address to the postal authorities or making alternative arrangement to receive correspondence on his behalf in his absence and the registered notice is returned for the reason that the addressee went abroad? That is the question raised for a decision in the revision. 2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class, Nilambur in S.T.No.1258 of 2006 for offence punishable under section 138 of the Negotiable Instruments Act (for short, “N.I. Act”). Case is that petitioner borrowed Rs. Two lakhs from respondent No.1 and issued Ext.P1, cheque dated 01-04-2006 for repayment of that amount. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Respondent No.1 attempted at serving statutory notice on petitioner but it was returned with the endorsement that the addressee (petitioner) left India. Respondent No.1 has a case that petitioner influenced postal authorities and got the registered notice returned with the endorsement that he went abroad at a time when he was available at the same address. I shall advert to that contention a bit later. Regarding the execution of the cheque respondent No.1 gave evidence as PW1. Petitioner claimed Crl.R.P.No.2630 of 2009 2 that he had borrowed Rs.20000/- from the son of respondent No.1 and given four signed blank cheques. Petitioner returned Rs.20000/- to the son of respondent No.1, but the signed blank cheques were retained by him. Courts below did not accept that version of petitioner and found that he had issued the cheque in favour of respondent No.1 for the discharge of a legally enforceable debt/liability. It was also found that there was deemed service of notice on petitioner. These findings are under challenge in this revision. 3. So far as execution of the cheque is concerned, it is not disputed that Ext.P1, the cheque is signed by the petitioner and is drawn on the account maintained by him. It is true that petitioner has an explanation how else the cheque happened to be in the custody of respondent No.1 and he has stated so as DW1. But, there is no acceptable evidence to show that petitioner had any transaction with the son of respondent No.1, the amount borrowed was Rs.20000/- or that any amount was paid to the son of respondent No.1. As against the evidence of respondent No.1 which gets corroboration from Ext.P1, the cheque, what is available in favour of the petitioner is his evidence as DW1 which is not corroborated. Courts below considered the evidence and found that there is no reason to disbelieve the evidence of respondent No.1 regarding execution of the cheque. It is not shown that the finding is vitiated by any illegality, irregularity or impropriety calling for interference by this court in revision. Crl.R.P.No.2630 of 2009 3 4. It is contended by learned counsel that there is no proper service of notice or even deemed service. According to the learned counsel, circumstance did not warrant the presumption that there is deemed service of notice on petitioner. Learned counsel has placed reliance on the decision of this court in Ravi Vs. Ayyappa Roller Flour Mills Ltd (2009(1)KLT 335). It is also submitted by learned counsel that contention of respondent No.1 that petitioner influenced the postal authorities and got the registered notice returned with the endorsement that he went abroad is not established. 5. In the complaint it is stated that registered notice was issued to the petitioner but the notice was returned with the endorsement that the addressee left India which (according to respondent No.1) is a false endorsement made at the instance of petitioner. It is true that there is no evidence to show that endorsement made on Ext.P6, the returned cover is false or was made at the instance of petitioner. On the other hand petitioner has to produced Ext.D1 to show that he was abroad during the relevant time. Question is whether in the facts and circumstances of the case the presumption of deemed service can be drawn. 6. Going by section 138(b) of the Act, responsibility of respondent No.1 was to send notice to the petitioner. Section 94 of the Act prescribes the mode in which notice may be given to a duly authorized agent of the person to whom it is required to be given. If Crl.R.P.No.2630 of 2009 4 the notice is in writing it can be send by post (as per section 138(b) of the Act, the notice has to be in writing). Respondent No.1 has sent the notice in writing in registered post to the last known address of petitioner. In R Vs. Secretary of State (1987(3) AIIER 999) a similar question was considered. The relevant regulation required notice to be send by registered post or by the recorded delivery service to the last known or usual place of abode. Notice issued in the last known address. Notice was returned undelivered. Question arose whether return of notice was sufficient evidence that the persons whereabouts were unknown. The court of appeal held in unanimity that in such circumstances in the absence of any other evidence the only possible conclusion is that the Secretary did not know the addressee's whereabouts or place of abode. Bhashyam and Adiga's 'the Negotiable Instruments Act' 16th Edition at pages 93-94 says that notice sent by post to the ostensible place of business or to the only known address (Shelton Vs. Braithwaite-(1841)7 MLW 436: 151 ER 836) is sufficient though the addressee may have changed his residence or place of office. If the party who is sought to be charged is himself guilty of negligence in the matter of giving his address, then, he is not relieved from liability when the fault in the address is due to that circumstance. The Supreme court has considered the presumption regarding deemed service of notice in Alavi Haji Vs. Muhammed (2007 (3) KLT 77) and it was held, Crl.R.P.No.2630 of 2009 5 “this court has already held that when a notice is sent by registered post and is returned with a postal endorsement- refused-or-not available in the house-or-house locked-or- shop closed-or-addressee not in station-, due service has to be presumed.” 7. On the facts of this case, petitioner has no contention that his address given in Exts.P4 and P6 are not correct. His only case is that during the relevant time he was abroad. When examined as DW1 he stated that he got information from his house (while abroad) about the registered notice. That indicates that the postman had brought the registered notice to the residence of petitioner for service but had to return the notice as petitioner was abroad. Petitioner has no case that while going abroad he had intimated his address abroad to respondent No.1 or to the postal authorities or made alternative arrangements to receive the correspondences on his behalf in his absence from place of residence. If without doing any of the above petitioner has gone abroad and for that reason notice was returned, I am persuaded to think that respondent No.1 was not at fault and it amounted to deemed service of notice. Petitioner has no reason to complain about non service as it was brought about by his own negligence or omission. Position may be different if respondent No.1 was aware of the address of petitioner abroad or with the exercise of due diligence she could have learned that but she did not do so and being aware that petitioner is not available in his place of residence issued notice in that Crl.R.P.No.2630 of 2009 6 address with ulterior motives. Petitioner has no such case or evidence. Therefore the contention that there was no notice of dishonour and demand for payment of the amount has to fail. 8. What remained for consideration is whether sentence awarded to the petitioner is excessive. Learned magistrate sentenced petitioner to undergo simple imprisonment for two months. There was also a direction for payment of Rs. Two Lakhs by way of compensation to respondent No.1 and in default of payment to undergo simple imprisonment for two months. Appellate court confirmed the substantive sentence but held that respondent No.1 has not suffered loss on account of dishonour of the cheque since the civil remedy of recovery of the amount was still open to him. It also observed that no case law is brought to its notice that in all cases under section 138 of the Act, compensation has to be awarded. Appellate court set aside the direction for payment of compensation. Learned counsel requested that substantive sentence awarded to the petitioner may be modified. 9. Having regard to the nature of the offence which is not shown to have any moral turpitude I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time, petitioner has to pay compensation to respondent No.1. Appellate court has observed that respondent No.1 has not suffered loss since the civil remedy of recovery of the amount is still available to her. Provision is made in section 357(3) of the Code of Crl.R.P.No.2630 of 2009 7 Criminal Procedure to provide compensation to the victims. On account of dishonour of the cheque, needless to say that respondent No.1 has suffered loss. This court has pointed out on many occasion that normally a conviction for offence punishable under section 138 of the Act should be followed by a direction for payment of compensation. Learned Additional Sessions Judge has not cared to follow the decisions of this court and instead on irrelevant considerations set aside the direction issued by learned magistrate for payment of compensation. The Supreme Court has also held that courts are empowered to impose default sentence for non payment of compensation as a means of enforcement of the order. Section 357(4) of the Code empowers the revisional court to award compensation. Having regard to the facts and circumstances of the case and taking into account the fact that substantive sentence awarded to the petitioner is being modified as above stated, I direct that petitioner has to pay compensation of Rs. Two Lakhs to respondent No.1 and that in case of failure he has to undergo simple imprisonment for three months. 10. Learned counsel has requested that petitioner may be granted six months' time to deposit compensation. It is also requested that petitioner may be permitted to pay compensation directly to respondent No.1. According to learned counsel petitioner is not able to raise the amount immediately on account of financial difficulties. Considering the circumstances stated by learned counsel I am inclined Crl.R.P.No.2630 of 2009 8 to grant time till 13-01-2010 to deposit compensation. 11. I have dispensed with notice to respondent No.1 in view of the order I proposed to pass in this revision which is not prejudicial to her. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is directed to deposit in the trial court for payment to respondent No.1, Rs.2,00,000/- (Rupees Two Lakhs Only) by way of compensation under section 357(3) of the Code of Criminal Procedure on or before 13-01-2010 failing which petitioner has to undergo simple imprisonment for three months. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through her counsel acknowledging receipt of compensation within the period aforesaid. 4. Petitioner shall appear in the trial court on 14-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 14-01-2010 . THOMAS P JOSEPH, JUDGE Sbna/