IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 4631 of 2007() ------------------------------ CRA.639/2006 of III ADDL.SESSIONS COURT, ERNAKULAM CC.1018/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- N.V.RAVI, MANAGING PARTNER, N.V.NARAYANAN & CO., GENERAL MERCHANT, MARKET ROAD IRINJALAKUDA - 21 (ADDRESS SHOWN IN THE COMPLAINT) N.N.RAVI, AGED 60 YEARS, S/O.LATE NADEPURAKKAL NARAYANAN, IRINJALAKUDADESOM MANAVALASSERY VILLAGE, THRISSUR(CORRECT ADDRESS). BY ADV. SRI.P.K.SAJEEV RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------- 1. M/S.AYYAPPA ROLLER FLOUR MILLS LTD., IV/75 B, SOUTH KALAMASSERY, KOCHI - 33, REPRESENTED BY POWER OF ATTORNEY MR.CHARLEY RODRIGUES. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.C.A.MAJEED FOR R1 BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON 19/09/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.4631 OF 2007 =========================== Dated this the 19th day of September,2008 ORDER First respondent lodged the complaint alleging that petitioner purchased goods and issued Ext.P2 cheque drawn in his account maintained in Irinjalakuda Branch of Canara Bank for payment of Rs.89,048/- due and when the cheque was presented for encashment through Lord Krishna Bank, Kaloor Branch where first respondent has an account, under Ext.P3 memo the cheque was dishonoured for want of sufficient funds and it was intimated to first respondent under Ext.P4 memo and first respondent sent Ext.P5 lawyer notice demanding the amount under registered post. It was contended that as the postal acknowledgement was not received, first respondent sent Ext.P6 complaint to the Postmaster,Changampuzha Nagar Post office from where Ext.P5 notice was sent and Ext.P7 letter was received from the Postmaster stating that matter CRRP 4631/2007 2 will be enquired and fact will be intimated. It was contended that petitioner did not pay the amount and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of PW1, DW1 and Exts.P1 to P8 found petitioner guilty and convicted and sentenced him to undergo simple imprisonment for a period of three months and a compensation of Rs.95,000/- for the offence under section 138 of Act. Petitioner challenged the conviction and sentence before the Sessions Court, Ernakulam in Crl.Appeal No.639/2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for one month and a compensation of Rs.90,000/- and in default simple imprisonment for 15 days. This petition is filed under section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner and first respondent were heard. CRRP 4631/2007 3 3. Learned counsel appearing for petitioner argued that courts below failed to take note of the fact that there wass no cause of action to file a complaint and for that sole reason, conviction and sentence are to be set aside. Learned counsel argued that under clause (c) of proviso to Section 138 only if the drawer of the cheque fails to pay the amount covered by the dishonoured cheque within 15 days of receipt of the said notice, cause of action will arise and Ext.P5 lawyer notice was not served on the petitioner and therefore petitioner did not fail to pay the amount demanded under that notice and therefore there is no cause of action. It was argued that even first respondent when examined as PW1 did not depose that Ext.P5 notice was served on the petitioner and the very case in the complaint is that he did not get back the postal acknowledgement and therefore first respondent sent Ext.P6 letter to the Postmaster to ascertain whether notice was served and Ext.P7 reply was received which shows that the matter is CRRP 4631/2007 4 being enquired and there is no case in the complaint that as notice was not returned, it is presumed that notice was served on the petitioner and petitioner failed to pay that amount and thereby committed the offence. Learned counsel also pointed out that even PW1 had no case that petitioner either received the notice or refused to receive the notice or that he did not get back any further communication from the Postmaster subsequent to Ext.P7 letter and it cannot be presumed that notice was served on the petitioner. Learned counsel also argued that notice was not sent to the petitioner in the correct address but in the address shown in the complaint and the summons issued to the petitioner in that address was redirected to another address and even in that address summons was not served and in such circumstance courts below should have found that the complaint is not maintainable. Learned counsel relied on the decision of the Apex Court in Subodh CRRP 4631/2007 5 S.Salaskar v. Jayaprakash M.Shah (2008(3) KLT 616) and argued that presumption provided under section 27 of the General Clauses Act that could only be drawn when there is evidence to prove that notice was sent in the correct address and evidence of PW1 establish that he did not know the correct address and as he has no case that notice was sent in the correct address and the materials available establish that the address shown in Ext.P5 is not the correct address, the presumption provided under section 27 of General Clauses Act cannot be drawn and if so, the complaint is premature and the conviction and sentence are to be set aside. Learned counsel relying on the decision of the Apex Court in Shakti Travel & Tours v. State of Bihar and another (2002)9 SCC 415) argued that in the absence of an allegation in the complaint and also evidence that notice has been served on the petitioner, the complaint should have been dismissed. CRRP 4631/2007 6 4. Learned counsel appearing for first respondent argued that notice was sent in the correct address of the petitioner and burden cast on the first respondent is only to send a notice demanding the amount covered by the dishonoured cheque and Ext.P5 establishes that a registered notice was sent in the correct address of the petitioner and as the notice was not returned, it can only be presumed that notice was served and therefore the conviction is perfectly correct. Relying on the decision of the Apex Court in C.C.Alavi Haji v. Palapetty Muhammed and another (2007(3) KLT 77) it was argued that petitioner did not pay the amount even after filing of the complaint and so he is not entitled to contend that as he did not receive the notice, complaint is not maintainable and courts below rightly convicted the petitioner. 5. In order to attract the offence under section 138 of N.I.Act, complainant has to CRRP 4631/2007 7 establish that the cheque was presented to the Bank within a period of six months from the date on which the cheque is drawn or within the period of its validity whichever is earlier as provided under clause (a), and the payee or the holder in due course of the cheque made a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid as provided under clause (b) and the drawer of such cheque failed to make payment of the amount to the payee or to the holder in due course of the cheque as the case may be, within 15 days of receipt of the notice. Though the liability of the payee or the holder in due course of the cheque is only to make a demand in writing by giving a notice within thirty days from the date of receipt of the information regarding dishonour, the offence will be completed only if the drawer of the cheque fails to pay that amount so demanded “within 15 days of CRRP 4631/2007 8 receipt of the said notice”. Even if the notice was sent as provided under clause (b) of Section 138, if the notice was not served on the drawer of the cheque or was not refused by him, the cause of action will not arise, as it will arise only on the failure of the drawer of the cheque to pay the amount demanded in the notice within 15 days of receipt of that notice. In the absence of such an allegation in the complaint and also evidence, the complaint is not maintainable. Apex Court in Shakti Travel & Tours (supra) held:- “The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in para 8 of the complaint, it must be held that notice has not been served and, therefore, an application under section 138 could not have been maintained. Undoubtely, the CRRP 4631/2007 9 accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, is it open for the complainant to file a case under section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in para 8, the complaint itself is not maintainable.” 6. Case of the first respondent in the complaint itself is not that the notice sent to the petitioner as provided under clause (b) of Section 138 was either served or refused. Instead case was only that he did not get back either the notice or the acknowledgement. The relevant recitals in paragraph 3 of the complaint reads:- “On 19.3.2001 the complainant sent CRRP 4631/2007 10 a registered notice to the accused informing him of the dishonour of the cheque and called upon him to make the payment covered by the cheque within 15 days from the date of receipt of the said notice. As the acknowledgement card was not received by the complainant, complainant submitted a complaint before the Post Master, Changampuzha Nagar Post Office on 12-04-2001 regarding the non-receipt of the acknowledgement card letter dated 17.4.2001 was received from the Sr.Manager of Kochi Customer Care Centre stating that they are conducting an enquiry in this matter and will inform the result shortly. As on today complainant has not received any communication from the Postal CRRP 4631/2007 11 authorities and hence complainant is constrained to file this petition.” 7. As rightly pointed out by the learned counsel appearing for petitioner, there is no allegation in paragraph 3 that notice was sent in the correct address of the petitioner or that it was served on the petitioner or that petitioner either refused to receive the same or the notice was returned unclaimed. The only allegation is that as complainant did not get back the acknowledgement he lodged a complaint and did not receive any reply. Ext.P6 complaint filed by first respondent before the Postmaster only shows that he did not receive the acknowledgement card and therefore he wanted to ascertain whether the letter was delivered to the addressee or not. There is no assertion in Ext.P6 that notice was served on the petitioner. Ext.P7 reply received by the first respondent. It reads:- “I am in receipt of your letter CRRP 4631/2007 12 cited above regarding non-receipt of acknowledgement in respect of Regd. Letter No.1933 dated 20/3/2001 booked at COCHIN 33 Post Office. I am enquiring into it and will write to you again shortly. In the meanwhile, if you are in receipt of acknowledgement or have any communication regarding delivery of the article through any other source, you are requested to intimate the same to this office.” Ext.P6 and P7 will not establish that the notice was either served or refused to be received by petitioner. Ext.P5 shows that the said notice was sent to the petitioner in the following address:- “N.V. Ravi, N.V.Narayanan & Co, General Merchant CRRP 4631/2007 13 Market Road, Irinjalakuda Pincode.680121.” The records of the trial court shows that summons on the petitioner sent from court by registered post in the said address was redirected by the Post Office, Irinjalakuda to the following address:- “N.N.Ravi Nadupurakkal House, Thrissur Road Irinjalakuda North P.O.” The endorsement in the postal cover shows that the said notice was not served even in that address as it was found locked. A non-bailable warrant was thereafter issued and petitioner appeared subsequently. Therefore the summons sent from the court itself establish that address of the petitioner seen in Ext.P5 is not the address of CRRP 4631/2007 14 the petitioner. When first respondent was examined as PW1 he was cross examined with regard to the address. It is pertinent to note that even in chief examination first respondent did not depose that address of the petitioner shown in Ext.P5 notice is the correct address. In cross- examination PW1 deposed that he was not aware of the correct address of the petitioner. There is no evidence to prove that address shown in Ext.P5 is the correct address of the petitioner. Therefore the presumption provided under section 27 of the General Clauses Act cannot be drawn. 8. Section 27 of General Clauses Act,1897 provides that where any Central Act or Regulation made after the commencement of the Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used,then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and CRRP 4631/2007 15 posting by registered post, a letter containing the document, and, unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. As declared by the Apex Court in Alavi Haji's case (supra) if the notice is sent in the correct address of the petitioner by registered post and it is not returned back as unclaimed or no such addressee, it is to be presumed that the notice has been served. But to draw that presumption, there should be evidence that the address in which the registered notice was sent is the correct address of the petitioner. When there is no such allegation in the complaint and when even PW1 has no such case and in cross examination he deposed that he was not aware of the correct address of the petitioner and case records establishes that the address shown in Ext.P5 is not the correct address of the petitioner the presumption provided under section 27 of General Clauses Act cannot be drawn CRRP 4631/2007 16 and it cannot be presumed that notice was served on the petitioner. As stated earlier, there is no case that petitioner refused to receive the notice. Therefore there is no cause of action to lodge the complaint as it will arise only on the refusal of the petitioner to pay the amount covered by the dishonoured cheque, within 15 days from the date of receipt of the notice provided under clause (b) of Section 138 of N.I. Act. As pointed by the learned counsel appearing for petitioner, PW1 also deposed that he closed his business six years earlier and if so it could be before sending Ext.P5 notice. 9. Learned Magistrate and learned Sessions Judge unfortunately omitted to take note of this crucial aspect and committed an illegality in convicting the petitioner when there was no cause of action to the complaint. It is more so because under Ext.P7 the Postmaster had intimated first respondent that matter is being enquired and it is possible that first respondent either received a CRRP 4631/2007 17 communication from the Postmaster that notice was not served or it could not be traced at all and PW1 has no case that he did not receive any communication subsequent to Ext.P7. The conviction passed by the learned Magistrate as confirmed by learned Sessions Judge is therefore not legal or sustainable. The revision is allowed. The conviction and sentence in C.C.1018/2001 on the file of Judicial First Class Magistrate-II, Ernakulam as confirmed in Crl.Appeal 639/2006 on the file of III Additional Sessions Judge, Ernakulam are set aside. Petitioner is acquitted of the offence under section 138 of Negotiable Instruments Act. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006