IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 731 of 2003() -------------------------------- CC.667/1999 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... APPELLANT(S): COMPLAINANT: -------------------------- NIBU PETER, OMBALAYIL HOUSE, KOLENCHERRY P.O. BY ADVS. MR.K.S.BABU SMT.N.SUDHA RESPONDENT(S): ACCUSED: ----------------------- 1. PRINCE JOSEPH MATHEW, S/O. MATHEW K.O., KANIYAMKUDIYIL HOUSE, VENGOLA, PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY MR.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, R1 BY ADV. MR.MURALI PURUSHOTHAMAN. R2 BY PUBLIC PROSECUTOR MR.B.VINOD THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 731 OF 2003 = = = = = = = = = = = = = = = Dated this the 18th 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, Kolencherry in C.C.667/99. It was an action u/s 138 of the Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.2,57,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds. Notices were issued and the accused had not received the same nor had paid the amount and therefore prosecution has been launched. Though the Court below found in favour of the complainant on the issuance of the cheque towards the discharge of the liability, acquitted the accused on the ground that the statutory notice required u/s 138(b) of the Negotiable Instruments Act has not been properly issued which is imperative under the provisions of the Crl.A. 731 OF 2003 -2- Act. A perusal of S.138 of the Negotiable Instruments Act would make it clear that the intimation should be 'by giving a notice in writing.' 2. Now the position of law before going into the factual matrix is as follows. The Hon'ble Apex Court in the decision reported in Alavi Haji v. Muhammed (2007 (3) KLT 77) held that “where payee dispatches notice by registered post with correct address of drawer of cheque, principle incorporated in S.27 of the General Clauses Act would be attracted.” So in order to have the presumptions u/s 27 of the General Clauses Act it is imperative that the notice should have been addressed in the proper address of the accused. If it is not there the presumption will not come to the aid of the complainant to get over the statutory mandate. Now let me consider whether this has been so in this case. 3. The notices issued in these cases are Exts.P5 and P7. Ext.P7 is the first notice that is issued. It is addressed to one Prince Mathew Joseph. Admittedly the name of the Crl.A. 731 OF 2003 -3- accused is Prince Joseph Mathew. When this was posted for service the postal authorities had returned the notice stating that the name differs. So far as Ext.P7 is concerned it has to be stated it is not a properly addressed notice. 4. The next question is regarding Ext.P5. There the name is shown as Prince Joseph Mathew and the postal address is Vengola P.O. Perumbavoor. An endorsement on the back of the notice would reveal it had endorsement on two beats. Postal authority has endorsed 'not known' and thereafter it has been deposited for seven days and returned as unknown. The complainant had examined PW2. She is the post mistress of Vengola Post Office. She had deposed before Court that the letter has been returned to the addressee as 'unknown'. In the cross examination she had deposed that when a particular person or the addressee is not within the area of jurisdiction of the concerned post office it is used to be written as unknown. PW3 would submit that unless intimation is given one cannot use the word 'unclaimed'. It is also Crl.A. 731 OF 2003 -4- deposed very clearly the word 'not known' is used when the delivery agent is not able to identify the addressee. So it was deposed by PW3 that the endorsement unclaimed in Ext.P5 is not a properly made endorsement. Now the learned counsel for the appellant very strongly contends before me that when the first notice was issued and it was returned with the endorsement of name differs he had contacted the accused and had sent the notice in the address supplied by him. According to her this is the version in the chief examination of PW1 and it has not been controverted. 5. At the out set I may like to state that when there is a litigation on the anvil and the relationship is strained, under ordinary human course of conduct one will not call the opposite party to know the correct address and the opposite party will never give a proper reply as well, that too in a S.138 of Negotiable Instruments Act case where the issuance of notice is mandatory for the statutory compliance. Even if it is believed for a moment the answer of PW1 itself would make it Crl.A. 731 OF 2003 -5- clear that even at the time of posting the letter he was quite aware of the fact that it does not come under the Vengola post office. To a pin pointed question................................... ........................................................................................ .......................................... So the complainant was totally aware of that fact. If he had given the name of a wrong post office he has to blame himself for the mistake. So on an analysis of the two notices, Exts.P5 and P7 it can be seen that the first notice is addressed to a wrong person and second notice in the wrong address. So the presumption as envisaged u/s 27 of the General Clauses Act cannot be given in this case because it does not satisfy the primary ingredient namely that the letter is despatched to the proper address of the addressee. So it has to be stated that there is no notice in writing as contemplated under S.138 of the Negotiable Instruments Act. When it is so an action will not lie and therefore I cannot find fault with the learned Magistrate for arriving at a decision. When there is no notice which is valid Crl.A. 731 OF 2003 -6- under law to initiate proceedings u/s 138 of the Negotiable Instruments Act, the action has to fail. Therefore the Crl.Appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 731 OF 2003 -7- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 731 OF 2003 = = = = = = = = = = = J U D G M E N T 18th August, 2009