IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRL.A.No. 478 of 2002() ----------------------- CC.1057/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT/COMPLAINANT ------------------------- T.P.ABDUL RAHIM, S/O.ASSU, AGED 35 YEARS, RABIYA MANZIL, PAPPINISSERY, KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): ACCUSED & STATE. ------------------------------- 1. V.MUHAMMED, S/O.AYAMMEDKUTTY, KUNNUMMAL HOUSE, AGED 40 YEARS, KEEZHOOR AMSOM DESOM, P.O.KEEZHOOR, KANNUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.PREETHY KARUNAKARAN FOR R1 PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.478 OF 2002 ............................................. Dated this the 25th day of August, 2009 J U D G M E N T This is an appeal preferred against the order of acquittal passed by the JFCM-II, Kannur in C.C.No.1057/1993. It was a case under Section 138 of the N.I.Act. It is the case of the complainant that the accused had borrowed a sum of Rs.50,000/= and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds. A notice was issued which was returned as unclaimed and thereafter prosecution was launched. The court below acquitted the accused on the ground that there is no notice in writing as contemplated under Section 138(b) of the N.I.Act. It is against that decision, the complainant has come up in appeal. 2. Heard the learned counsel for the appellant. He would contend before me that the court below had erred in finding that no notice had been properly issued. Before going into the factual matrix, I may refer to the decision of : 2 : CRL.A.NO.478 OF 2002 the Apex Court in the decision reported in Alavi Haji v. Muhammed [2007 (3) KLT 77 (SC)]. It has been held in that decision that: “Where payee dispatches notice by registered post with correct address of drawer of cheque, principle incorporated in Section 27 of the General Clauses Act would be attracted; the requirement of Clause (b0 of proviso to Section 138 Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c)of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. The court also went on to say that a person who does not pay within 15 days of receipt of summons from the court along with copy of the complaint, cannot obviously contend that there was no proper service of notice as required under Section 138 by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act”. So, if one is convinced that notice had been issued in proper address it satisfies the necessity contemplated under law. 3. Here the notice is issued to V. Muhammed, : 3 : CRL.A.NO.478 OF 2002 S/o.Ayammedkutty, Kunnummal House, Keezhoor amsom desom, P.O. Keezhoor, Kannur. The postal authorities had gone to the said address and had given the intimation on 31.7.1993 and as the notice was not claimed till 5.8.1993, it was returned to the sender as not claimed. So, prima facie the endorsement in the notice would indicate that the postal authorities had gone and given the notice to the addressee shown therein. 4. Now we have to find out whether the address is proper or not. It has to be stated that in the postal address summons had been issued to the complainant and a perusal of the papers before the trial court would convincingly establish that the police constable was able to find out the accused and he had served notice which is signed by the accused. On the basis of the same, he had entered appearance. Similarly in this appeal also notice is issued in the very same address and it had been received by the accused and he had entered appearance through counsel before this court. All these things make it clear that notice had been issued to the addressee in proper address. : 4 : CRL.A.NO.478 OF 2002 Further it has to be presumed that when postal authorities make an endorsement that it has been tendered and intimated then a presumption under Section 114 of the Evidednce Act to that effect. At any rate in the light of the decision referred to by me above, it has to be held that notice had been addressed in proper address and it satisfies the necessity and presumption under Section 27 of the General Clauses Act if arises. 5. Therefore, the finding of the court below that the postal authorities had not been examined to prove that it is not claimed is not very material in this case. I had also perused the other ingredients found by the court below. I find that the complainant had established that he had advanced the amount and the accused had issued the cheque towards the discharge of the liability. Therefore, the order of acquittal is liable to be set aside and the accused has to be convicted under Section 138 of the N.I.Act. 6. Now turning to the question of sentence. I do not want to send the accused in civil prison if he is desirous to settle the entire liability. I think justice can be met by : 5 : CRL.A.NO.478 OF 2002 directing him to undergo imprisonment till the rising of the court and to pay a compensation of Rs.50,000/= under Section 357(3) of the Cr.P.C to the complainant and in default to undergo S.I for two months. 7. In the result, the criminal appeal is disposed of as follows: 1. The order of acquittal is set aside and the accused is found guilty under Section 138 of the N.I. Act and is convicted there under. 2. He is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.50,000/= to the complainant under Section 357(3) of the Cr.P.C. In default, he has to undergo S.I for two months. 3. The accused shall appear before the court below on 1.12.2009 to receive the sentence and to pay the compensation, failing which the court below shall execute the sentence. M.N.KRISHNAN, JUDGE cl : 6 : CRL.A.NO.478 OF 2002 M.N.KRISHNAN, J. ........................................ CRL.A.NO.478 OF 2002 ........................................ 25th day of August, 2009 J U D G M E N T