IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 1789 of 2003() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRL.L.P.8110/2003 Dated 10/10/2003 CC.440/1999 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .............................................................................................. APPELLANT(S): COMPLAINANT --------------------------------------------- MOHANAKUMAR, S/O. SIVANANDAN, "SIVAMRUDU", PANANGODU DESOM, VENGANNOOR VILLAGE, POWER OF ATTORNEY HOLDER OF SIVANANDAN, S/O. NARAYANAN, MOHANA MANDIRAM, MUTTAKKADU DESOM, VENGANNOOR VILLAGE. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.KRISHNADAS P. NAIR RESPONDENT(S): STATE AND ACCUSED ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. AYYAN PERUMAL, S/O. KOLAPPAN ACHARI, RESIDING AT SEETHALAYAM, AAZHAKULAM, PANAVILA, KOTTUKAL VILLAGE (ACCUSED) BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1789 OF 2003 -------------------------- Dated this the 26th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against he order of acquital passed by the learned Magistrate in C.C.440/99 of the Judicial First Class Magistrate Court – III, Neyyattinkara. It is the case of the complainant that the accused had borrowed a sum and towards the discharge of the liability had issued a cheque which when presented for encashment returned with endorsement of `insufficiency of funds'. Thereafter he had issued a statutory notice which has been purposefully not received by the accused and so criminal prosecution is launched for non payment of the amount. 2. In the Trial Court, Pws.1 and 2 are examined and Exts. P1 to P9 were marked. The court on analysis of the evidence arrived at a decision that, there is a statutory non compliance as contemplated u/s.138 (b) of Negotiable Instruments Act or in other words, the court held that no notice in writing had been CRL.A.No.1789 OF 2003 2 given to the accused which vitiates the whole proceedings. It is against that decision the complainant has come up in appeal. The points that arise for determination in the appeal are, 1.Whether there is sufficient notice in writing as contemplated u/s.138(b) of the Act ? 2.Whether order of acquittal passed by the learned Magistrate is just and proper ? 3. Point Nos.1 and 2:- This is a case where the cheque is dated 4.11.98. The notice is dated 11.5.1999. The endorsement in the notice would show that `not known, no such addressee and so returned to the sender.' The address is `I.N.Perumal, S/o.Kollappan Achari, Seethalayam, Panavilla, Azhakulam, Vengannoor, Kottukal Village.' It is true that u/s.138(b) of Negotiable Instruments Act mandates, notice in writing. Before dealing with the question of law, it is desirable to deal with the facts to appreciate the contentions of the parties. The notice addressed to the above mentioned address is returned with the endorsement of `not known'. Suppose the CRL.A.No.1789 OF 2003 3 complainant is able to establish that it is the address where the accused lives, then it has to be stated that it is a proper notice in writing. I will straight away refer to the address in the complaint as well as the address in the summons issued to the accused and also the address shown by the accused in the Vakalath filed by him before the Court. A perusal of the complaint would convincingly establish that, it is a very same address that is shown in the notice, as the address of the accused. I have also perused the summons issued to the accused in the case, which contains the very same address and it is endorsed by the Assistant Sub Inspector of Police, Kovalam Police Station, that the accused was found in that address and notice had been served on that address. Then I refer the address in the Vakalath also of this accused. It is the very same address in the Vakalath that is given by the accused to be filed before the Court. So the address in the complaint, the service of notice endorsed by the police officials and the address given by the accused in the Vakalath are the same as is seen in the CRL.A.No.1789 OF 2003 4 notice issued as well. When such is the situation then it has to be held that the burden clearly shifts upon the accused to prove that he has not been served. Instances are not rare where a recalcitrant accused deliberately avoids notice by adopting methods known to him. Then what shall be the legal position in such cases, had been elaborately considered by the apex court in the decision reported in 2007 (3) KLT 77, (S.C.) in Allavi Haji V.Muhammed. It is laid down in that decision that, `where the payee dispatches the notice by registered post with correct address of the drawer of the cheque the principle incorporated in S.27 of the General Clauses Act would be attracted; '. Then the court held that “this court has held that when a notice is sent by registered post and it is returned with a postal endorsement --- refused --- or not available in the house --- or house is not located --- or shop closed --- or addressee not in station, then due service has to be presumed. It is therefore manifest that in view of the presumption available in Section 27 of General Clauses Act, it is not necessary to aver in the complaint u/s.138 CRL.A.No.1789 OF 2003 5 of Negotiable Instruments Act, that service of notice was evaded by the accused or that accused has a role to play in return of the notice unserved.`` The Apex Court also held in that case that, a person who does not pay within 15 days of receipt of summons from the Court along with a copy of the complaint, can not obviously contend that there was no proper service of notice as required u/s.138 of Negotiable Instruments Act, by ignoring statutory presumption to the contrary u/s.27 of General Clauses Act and S.114 of the Evidence Act. So the above said decision makes it crystal clear that when a notice is issued in writing in the correct address of the accused and there is evidence to show that it is the correct address, then the non receipt of the notice by the accused on one ground or other will not militate against the complainant, in proceeding with the case and the statutory requirements u/s.138 (b) of Negotiable Instruments Act is complied therewith. Applying the above dictum to the facts of the present case it can be seen that, the letter is addressed to the very same address in the complaint in CRL.A.No.1789 OF 2003 6 the summons and the address shown in the vakalat of the accused. To crown all these things, there is evidence by Pw1 to the effect that the accused is continuing to reside in the very same address. Not even a suggestion is put to contradict the cross examination. So it amounts to admission as well. So from these materials, I hold that there is notice in writing as contemplated under the Act. 4. Now let me consider other aspects. PW1 had deposed before the Court that the accused had issued a cheque towards the discharge of the liability. It is also proved that when it was presented for encashment it was returned with endorsement `insufficiency of funds'. As discussed earlier the statutory notice had been issued in time. So all the necessary ingredients necessary to prove the offence u/s.138 of Negotiable Instruments Act stands established in this case. Therefore, I set aside the order of acquittal passed by the Judicial First Class Magistrate and held that the accused is guilty of the offence punishable u/s.138 of Negotiable CRL.A.No.1789 OF 2003 7 Instruments Act. Now turning to the quantum of sentence. By virtue of the amended provisions of Negotiable Instruments Act, any Court of competent jurisdiction, is entitled to levy double the cheque amount as fine. So invoking that I feel that justice can be met in this case by directing the accused to pay fine instead of sending him to jail. Therefore I feel that, the cheque amount can be ordered as the fine, which on realisation shall be disbursed to the complainant. 5. In the result, the appeal is allowed and disposed of as follows :- 1. The order of acquittal is set aside. 2. The accused is found guilty of the offence u/s.138 of Negotiable Instruments Act and is convicted thereunder and sentenced to pay a fine of Rs.50,000/-, which on realisation shall be disbursed to the complainant on proper application and if the amount is not paid the accused has to undergo simple imprisonment for a period of 2 months. The accused shall pay a fine on or CRL.A.No.1789 OF 2003 8 before 31.8.2009, failing which the lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.