IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 CRL.A.No. 1238 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.84/2003 Dated 20/06/2003 ST.2115/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... APPELLANT/ COMPLAINANT: ------------------------------------------ NARAYANAN, S/O. KUTTY AYYAPPAN, CHERIKKEYMIL HOUSE, CHEMMANIYODE P.O. MALAPPURAM DIST. BY ADV. SRI.ISSAC M.PERUMPILLIL RESPONDENTS/ACCUSED & ANOTHER: ------------------------------------------------------ 1. M.J. PAULSON, S/O. MOORIYADAN JOHNY AVINISSERY P.O., OLLUR, THRISSUR DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROECUTOR HIGH COUER OF KERALA, ERNAKULAM. ADV. SRI.JIJO PAUL FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2010, THE COURT ON 14/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1238 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 2115 of 2000 on the file of Judicial First Class Masgistrate-II, Perinthalmanna. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Sec.138 of N. I. Act. 2. The case of the complainant is briefly as follows. The first respondent/accused had borrowed a sum of Rs.80,000/- from the appellant/complainant in the month of August, 1999 promising to repay it within a period of 2 or 3 months. The first respondent could not repay the amount within the time mutually agreed and subsequently the first respondent issued Ext.P1 cheque dated 15.12.1999 drawn on Venginissery Service Co- operative Bank, Palakkal Branch, Thrissur. The cheque was Crl.A. No. 1238 of 2003 2 dishonoured by the drawee bank due to the reason of 'insufficiency of funds' in the account of the first respondent. Statutory notice was issued to the first respondent to effect payment of the cheque amount to the appellant within 15 days of the said notice. The first respondent did not pay the amount even thereafter and the appellant filed the complaint. 3. In the Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to P6 were marked. No evidence was adduced from the defence side. The learned Magistrate, on considering the evidence, found that the statutory notice was not received by the accused and as such the accused is not guilty under Section 138 of the N. I. Act and he was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal, the complainant filed this appeal. 4. Heard the 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 ought to have found that there was proper service of notice Crl.A. No. 1238 of 2003 3 under Section 138(b) of the N. I. Act. The learned counsel for the appellant submitted that it was for the accused to prove that he did not instruct the advocate to issued Ext.P5 reply notice to Ext.P3 statutory notice. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Sec.313 Cr.P.C., the accused does not deny the fact that Ext.P1 cheque was dishonoured due to insufficiency of funds in the account of the accused, which is evident from Ext.P6 ledger extract of the account of the accused. The accused stated that he has not given the cheque and that he has not received the notice and that he has not sent any reply. 7. The complainant was examined as PW1. PW1 deposed that the accused borrowed a sum of Rs.80,000/- from him in the month of August 1999 promising to pay the amount within 2 or 3 months. But he has not repaid the amount and on 15.12.1999 the accused came to the house of the complainant and issued Ext.P1 cheque for the said amount drawn in Venginisseri Service Co-operative Bank, Palakkal Crl.A. No. 1238 of 2003 4 branch. Ext.P1 is the said cheque. PW1 presented the cheque for collection through Perintalmanna Co-operative Urban Bank Melattur Branch. But the cheque was dishonoured for the reason that 'funds insufficient' and the memo issued from the bank is Ext.P2. Thereafter the complainant issued a lawyer notice to the accused and the copy of the lawyer notice with postal receipt is Ext.P3. The accused received the notice and the acknowledgment card is Ext.P4. The accused sent a reply notice to the complainant's counsel and that reply notice is Ext.P5. The certified copy of the ledger extract of the account of the accused is summoned, which is Ext.P6. PW1 deposed that in spite of receipt of notice, the accused did not repay any amount. 8. The main contention of the accused is that he has not received the notice issued by the complainant. Ext.P3 is the copy of the lawyer notice issued by the complainant and Ext.P4 is the postal acknowledgment. The accused has no case that his address shown in Ext.P3 notice and Ext.P4 postal acknowledgment is incorrect. PW1 admits that Ext.P4 acknowledgment is signed by the mother-in-law of Crl.A. No. 1238 of 2003 5 the accused. The learned counsel for the appellant invited my attention to clause © of Section 3 of the Indian Post Office Act, 1898, which provides that delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee. 9. Since the original of Ext.P3 notice was received by the mother-in-law of the accused, who was present in the house of the accused, it can be presumed that she was authorised by the accused to receive the postal article addressed to the accused. More over, Ext.P5 reply notice was sent by the advocate at the instruction given by the accused. The accused has not taken any steps to prove that he had not given any instruction to the advocate to issue Ext.P5 reply notice. The accused has not gone to the witness box to speak about this aspect. In the absence of such evidence, it has to be held that there was proper service of notice to the accused as contemplated under Section 138(b) Crl.A. No. 1238 of 2003 6 of the Act. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate 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. 10. 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.80,000/- would meet the ends of justice. 11. Accordingly this appeal is allowed. The judgment of acquittal in S.T. No. 2115 of 2000 on the file of the J.F.C.M. Court - II, Perinthalmanna under Section 255(1) is set aside and the accused is found guilty and convicted under Section 138 of the Crl.A. No. 1238 of 2003 7 N.I. Act and he is sentenced to pay a fine of Rs.80,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of 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