IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CRL.A.No. 714 of 2002() ----------------------- CC.290/1998 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ A.N. BAIJU, S/O. NARAYANAN, ARISSERIL, VELLASSERIKARA, KADUTHURUTHI VILLAGE, VAIKOM. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): ACCUSED /STATE: ------------------------------------------------------- 1. T.G.MOHANAN S/O.GOPALAN, THANDATHIPARAMBIL, KURRUPANTHARAKARA, MANJOOR VILLAGE, VAIKOM TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.MATHEW PHILIP EDAPPALLIL R2 BY SR.PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.A. No.714 OF 2002 ===================== Dated this the 22nd day of May 2009 JUDGMENT This appeal is preferred against the order of acquittal passed by the Judicial I Class Magistrate, Vaikom in C.C.No.290 of 1998. The accused was proceeded against under Section 138 of the Negotiable Instruments Act. The brief facts of the case as revealed from the complaint are to the effect that the accused had borrowed a sum of Rs.75,000/- on 23.9.1997 and towards the discharge of liability he had issued a cheque written in his hand bearing the date 23.10.1997. When the cheque was presented for encashment, it was dishonoured and thereafter statutory notice was issued and the case was filed. The case of the accused as seen from 313 statement appears to be that he had no transaction with the complainant and that he had given the cheque to one Prasad of Kaduthuruthy and it was given as a security for the amount given by the said Prasad in favour of one Vijayan. 2. In the trial court, Pws 1 to 3 were examined. Exts.P1 to P7 were marked and the court below entered a finding to the effect that there has been no notice as contemplated under the statute and therefore dismissed Crl A 714/2002 -:2:- the case. It is against that decision, an application for filing the appeal with special leave was preferred which was allowed and subsequently the appeal has been admitted. 3. The points that arise for determination in the appeal are: (1) Whether the accused had borrowed a sum of Rs.75,000/- as alleged by the complainant and has committed offence punishable under Section 138 of the Negotiable Instruments Act and (2) Whether the notice which is marked as Ext.P4 is proper and sufficient. 4. Point No.1: This point deals with the transaction. It is the case of the complainant that on 23.9.1997 he had advanced a sum of Rs.75,000/- and on that date, the accused had issued a post dated cheque dated 23.10.1997 undertaking to discharge the liability. When the said cheque was prevented for encashment, it was returned with the endorsement 'insufficiency of funds'. Ext.P1 is the cheque dated 23.10.1997 and issued in favour of the complainant through Kaduthuruthy Urban Co-operative Bank. Ext.P2 is the intimation given by the Branch Manager that the cheque has been returned unpaid for want of sufficiency of funds. Ext.P4 is the returned registered notice about which detailed discussions are necessary later. 5. PW1 had deposed before court that the accused had approached Crl A 714/2002 -:3:- him for advancement of the amount one week prior to the date of borrowal and that he had raised the funds by selling the timber from his property and had handed over the amount on 23.9.1997. He had been vehementally cross examined and nothing is brought out to discredit the evidence of the complainant. Though the accused has got a case that a signed blank cheque was given as security to one Prasad in a transaction relating to Vijayan, nothing is forthcoming in the form of documentary or oral evidence to substantiate the same. I am conscious of the fact that under Section 315 of the Code of Criminal Procedure, the accused cannot be compelled to let in any evidence. Now it is a well settled proposition that in 138 cases, the courts are entitled to weigh the preponderance of probabilities of evidence in order to find out the truth. Now the evidence of PW1 remains unshattered. He had given cogent reasons how he had raised the funds and how the amount is given and therefore I find that execution of Ext.P1 stands proved and when it is proved the presumption follows under Section 118 that it is supported by consideration and the further presumption that it is issued towards the discharge of liability also is proved under Section 139 of the N.I.Act. So, the evidence of PW1 coupled with the presumption established the case of borrowal by the accused from the complainant. 6. The next question is regarding the compliance of statutory notice. Crl A 714/2002 -:4:- It is mandatory that the complainant has to give a notice in writing to the drawer of the cheque so as to enable him to discharge the liability within the statutory period as required under Section 138(b) of the NI Act. Now an important question that has been considered and found against the complainant is regarding the fact whether in fact there is a proper notice as contemplated under Section 138(b). 7. I had perused the original of Ext.P4 and it would show that it has been addressed to T.G.Mohanan, Thandathiparambu, Kuruvanthara, Manjoor. It is the same address that is shown in the complaint as well and the accused had received summons in that address. Ext.P4 would go to show that the postal authorities had given notice on 14.3.1998 and then had returned it to the sender as unclaimed. This matter is attempted to be proved by examining PW2, who was the postman at the relevant point of time. PW2 had deposed that he had visited the house on 14.3.1998 and at that time, the addressee was not available and therefore he had given intimation to the father of the accused and had come back. He also asserts that the accused is residing permanently in the address shown therein. It is true that the complainant has got a case that the accused was in the house at the time of bringing the summons and it was a deliberate act. It is true that he also filed a complaint before the higher authorities on that regard. But Crl A 714/2002 -:5:- the fact remains that at least the father of the accused was present in the house and he was intimated about the factum of the registered notice and according to the postman since the accused did not go to the post office and received the notice in spite of intimation and notice, it was returned to the sender as unclaimed. I feel and find that the procedure adopted by the postal authorities is only just and proper. There is no case for the accused that he was not residing in that house. Now in a catena of decisions, the Apex Court has made it very clear that when a person gives an address at the time of transaction and later changes the residence, it is his duty to inform the person concerned or at least to the postal authorities regarding the change of address. In 138 cases, the courts have found that if technical approach is made, there is no difficulty for a person to defeat the claim by evading notice. So giving the intention and purport of Section 27 of the General Clauses Act, the courts have held that when the notice is properly addressed and that person has been intimated, it is sufficient and it amounts to valid notice in writing. So far as this case is concerned, PW2 had been examined and he had deposed before court that the father had been duly intimated about the notice but the refusal was on the part of the accused to go to the post office and collect the notice. Or, in other words, it is only a deliberate avoidance of the notice to escape from the liability which cannot Crl A 714/2002 -:6:- be entertained. Here, there is also evidence tendered by PW3 who according to him had come to the house of the accused in order to get his cycle repaired by the father of the accused and there was some conversation regarding notice in favour of the accused. So, the things are very clear and I find that the court below has been totally technical and has not understood the purport of a valid notice as contemplated under Section 138(b) of the Act. So, from these discussions, the following points are concluded, viz., the execution of the cheque is proved and the issuance of notice is also proved. There has been a demand and the accused has not paid back the amount within the time stipulated under the statute and therefore all the necessary ingredients to constitute offence under Section 138 stand established and therefore I set aside the judgment passed by the trial court and find that the accused is guilty of the offence under Section 138 of the NI Act. 8. Now comes to the question of sentence. By virtue of the amendment to the provisions of the NI Act even the Magistrate is competent to impose a fine equivalent to double the amount of the cheque issued. There is no point in sending the person to the jail. So, I confine my finding by holding that the accused can be convicted for the offence under Section 138 of the NI Act and sentenced to pay a fine of Rs.1 lakh, as the Crl A 714/2002 -:7:- transaction is of the year 1998 which on realisation shall be given to the complainant. In the result, the appeal is allowed. The judgment of the trial court is set aside and the accused is found guilty of the offence punishable under Section 138 of the NI Act and he is convicted and sentenced to pay a fine of Rs.1 lakh which on realisation shall be paid to the complainant. The accused shall pay the fine so ordered on or before 31.8.2009 failing which the trial court can execute the sentence as contemplated under Section 421 Cr.P.C. M.N.KRISHNAN, JUDGE Cdp/-