IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 CRL.A.No. 1782 of 2003() ------------------------ CC.1473/1998 of CHIEF JUDL.MAGISTRATE, ERNAKULAM AGAINST THE JUDGEMENT/ORDER IN CRLP.454/2003 Dated 10/10/2003 .................... APPELLANT(S): -------------- M/S.KITEX GARMENTS TD., KITEX HOUSE, III FLOOR, SHENOY CHAMBERS, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI, REPRESENTED BY J.BALAKRISHNAN, EXECUTIVE (EXPORT) BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENTS/ACCUSED: --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RADHA PETER, PROPRIETRIX, P&p TEXTILES, OTTASEKHARAMANGALAM, TRIVANDRUM R2 BY ADV. SRI.J.DEVADANAM R2 BY SRI.VINOD J.DEV PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1/9/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKC N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1782 of 2003 --------------------------------- Dated this the 1st day of September 2011 J U D G M E N T The learned counsel for the 2nd respondent is absent. No representation. Heard, the learned counsel for the appellant company. 2. The complainant is the appellant. The complaint filed under Sec.138 of the N.I.Act was ended in acquittal under Sec.255(1) Cr.P.C. This appeal is directed against that acquittal. 3. The case of the complainant is that the accused/2nd respondent had purchased textile goods from the complainant for a sum of Rs.6,765/- and to discharge that liability Ext.P1 cheque was issued. When it was presented for encashment it was dishonoured on the ground of insufficiency of fund. On receipt of the intimation from the bank, statutory notice was sent. The complainant Crl.A.No.1782 of 2003 -: 2 :- alleged that the notice was acknowledged by the accused. The amount was not paid. Hence the complaint was filed. 4. The representative of the complainant was examined as PW1 and Exts.P1 to P11 were marked. The accused got herself examined as DW1 and Exts.D1 and D2 were marked. 5. The learned Magistrate found that the case advanced by the accused that the case was filed against her making use of the cheque leaf stolen from her possession was found against. The case of the complainant that Ext.P1 was issued to discharge the amount payable by the drawer towards the price of the textile goods purchased from the complainant was accepted. But the learned Magistrate found that notice under proviso (b) to Sec.138 of the N.I.Act was not actually sent to the accused and it was not actually received by her whereas the notice was sent only to the proprietor/proprietress of the shop. It was also found that DW1 was not the proprietress of the shop and as such Crl.A.No.1782 of 2003 -: 3 :- accused cannot be held guilty of the offence punishable under Sec.138 of the N.I.Act and thus she was acquitted. 6. The learned counsel for the appellant would submit that what is required under proviso (b) to Sec.138 of the N.I.Act is sending of notice and that condition was satisfied by giving notice to drawer as can be seen from Ext.P3 notice and P4 postal receipt. The learned counsel would submit that Ext.P10 invoice would show that the textile goods were actually sold to P & P Textiles. The value of the textiles was shown as Rs.6,765/-. It is argued that since the invoice shows the purchaser’s name as M/s.P & P Textiles, Chembur, a place in Thiruvananthapuram the notice was also sent in that address and it was acknowledged also. The contention raised by the accused that the notice was not received by her, cannot in such circumstance, be accepted. It is also argued that simply because the signature in the acknowledgement was not put by the accused it cannot be said that there was no “giving” Crl.A.No.1782 of 2003 -: 4 :- of notice as required under the proviso (b) to Sec.138 of the N.I.Act. 7. The accused who got herself examined as DW1 admits that the textile business stands in the name of her husband. It was also admitted by her that during the relevant time, for about 2-3 years her husband was away. So the reasonable inference to be drawn is that PW1 herself was conducting the business in that shop. Simply because the licence or ownership of the building stood in the name of her husband it cannot be said that she was not the person in charge of the business. The textile goods were purchased by P & P Textiles as mentioned above. Ext.P1 was issued to discharge that liability. Hence there can be no difficulty to hold that the notice sent in the address of P & P Textiles, Chembur, Ottasekharam, Thiruvananthapuram (as can be seen from Ext.P5 postal acknowledgment) is perfectly in order. It is sufficient if the notice is received either by herself or by her agent or representative in the Crl.A.No.1782 of 2003 -: 5 :- shop. It was admitted by DW1 that she was convicted of the offence in another case also where she was described as the proprietress of the P & P Textiles. The cumulative effect of the evidence and circumstance would lead to the irresistible conclusion that there was proper notice as envisaged under proviso (b) to Sec.138 of the N.I.Act. 8. Ext.P10 and other records would show that Ext.P1 was issued by her to discharge the debt/liability created as per Ext.P10 for the goods purchased by her. The contention to the contrary advanced by the accused was turned down by the learned Magistrate. 9. It is seen that all the statutory requirements were duly complied with and as such, the conviction must necessarily follow. The judgment of acquittal passed by the learned Magistrate has to be set aside. In the result, this Crl.A. is allowed. The judgment of acquittal passed by the learned Magistrate is set aside. The accused/2nd respondet is found guilty of the offence Crl.A.No.1782 of 2003 -: 6 :- under Sec.138 of the N.I.Act and she is convicted there under. She is sentenced to pay a fine of Rs.10,000/- and in default of payment of the same she will undergo S.I. for one month. N.K.BALAKRISHNAN, JUDGE. Jvt