IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 CRL.A.No. 1565 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.310/2003 Dated 25/08/2003 ST.6572/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT: ----------------------------------------- K.M. MADHAVAN, S/O. MAMAKUTTY KAINATTUDAN HOUSE, AMBELLUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS/ACCUSED AND STATE: ------------------------------------------------------ 1. ASHRAFF, S/O. PUTHIYAPARAMBIL JOSEPH VALIAPARAMBU, KANJIRAPPILLI NOW RESIDING AT 2ND MILE, KANJIRAPPILLY, VIA. ERATTUPETTA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.B.JAYASANKAR FOR R1 SRI.P.K.SAJEEV FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON 25/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1565 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 6572 of 1998 on the file of the Judicial First Class Magistrate Court, Irinjalakuda against the judgment of acquittal of the first respondent herein. The first respondent is 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. The case of the complainant is briefly as follows. The accused approached the complainant and offered him to supply timber worth Rs.1,50,000/- and received Rs.1,50,000/- from the complainant on 30.12.1997 and executed Ext.P1 cheque for that amount. When the complainant sent the cheque for collection through his bank, it was dishonoured due to insufficiency of funds in the account of the accused. The complainant sent a Crl.A. No. 1565 of 2003 2 lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. That notice was returned unserved with an endorsement 'addressee left the place without instruction. So returned to the sender.' Inspite of the notice, the accused did not repay the amount or supplied the timber. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P5 were marked. No evidence was adduced from the side of the accused. The learned Magistrate, on considering the evidence, found that the cheque was issued as security and as such the accused has not committed the offence punishable under Section 138 of the N.I. Act and acquitted the accused 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 even if Ext.P1 cheque was issued as security, the liability under Section 138 Crl.A. No. 1565 of 2003 3 of the Act cannot be avoided. Learned counsel for the appellant further submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and the learned Magistrate is not justified in acquitting the accused. The learned counsel for the first respondent supported the judgment of the court below. 6. When the complainant was examined as PW1, he deposed that he is having acquaintance with the accused in connection with timber business. PW1 deposed that on 30.12.1997 the accused came to his house and received Rs.1,50,000/- from him for the supply of timber to him and in order to secure repayment of the amount the accused issued Ext.P1 cheque for that amount. When Ext.P1 cheque was presented for collection through his bank, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the cheque return memo from the drawer bank and Ext.P3 is the cheque return memo from the drawee bank. PW1 deposed that he sent a lawyer notice to the accused. Ext.P4 is the copy of the lawyer notice Crl.A. No. 1565 of 2003 4 and Ext.P5 is the postal receipt. PW1 further deposed that inspite of sending of notice, the accused did not repay any amount or supplied any timber. In cross examination PW1 deposed that the signature and handwriting seen in Ext.P1 cheque are that of the accused. In cross examination of PW1 there was a suggestion that the complainant agreed to supply timber to the accused and Ext.P1 cheque was received from the accused as the price of that timber. But PW1 denied that suggestion. 7. When questioned under Section 313 Cr.P.C., the accused stated that no amount is due from him to the complainant. The accused has no case that when he gave Ext.P1 cheque it was a blank signed cheque. Since the execution of Ext.P1 cheque is proved by the evidence of the complainant, the presumption under Sections 118 and 139 of the N.I. Act will have to be made that Ext.P1 cheque was drawn for consideration and it was executed for discharge of a debt or liability. The burden is on the accused to rebut that presumption. The accused has not adduced any evidence to rebut that presumption. Crl.A. No. 1565 of 2003 5 The accused has no case that the address shown in the lawyer notice is not correct. Since the complainant sent the registered notice by post with correct address written on it, it is deemed to be served on the accused unless he proves that it was not really served and that he was not responsible for the non-service. 8. In the decision reported in C.C. Alavi Haji v. Palapetty Muhammed ((2007) 6 SCC 555) it was held that: “The Supreme 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.” Therefore, even if the registered notice is returned back with an endorsement that 'addressee left', due service of notice has to be presumed. Since the complainant has proved all ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not Crl.A. No. 1565 of 2003 6 justified in acquitting the accused. Since the accused has committed an offence punishable under Section 138 of the N.I. Act, he is convicted under that section. 9. 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. 10. Accordingly this appeal is allowed and the acquittal of the accused in S.T. No. 6572 of 1998 on the file of the Judicial First Class Magistrate Court, Irinjalakuda under Section 138 of the N.I. Act is set aside and the accused is found guilty under Section 138 of the N.I. Act and he is convicted under Section 138 of the N.I. Act and sentenced to pay a fine of Rs.1,50,000/- The Crl.A. No. 1565 of 2003 7 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 one month by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm