IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 CRL.A.No. 1311 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.510/2004 CC.336/2002 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT: COMPLAINANT. -------------------------------------------- KERALA TRAVELS L.M.S.BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM REP. BY ITS MANAGING PARTNER K.C.CHANDRAHASAN, S/O.LATE CHELLAPPAN PILLAI, SUKRUTHAM 51 SKYLINE APARTMENTS, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): ACCUSED. ----------------------------------------- 1. A.V.GOVINDANKUTTY, PROPRIETOR,G.K.FILMS, SATHALAYAM, TALAP, KANNUR - 2. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 31. ADV. SRI.K.T.SHYAMKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON 02/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1311 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 336 of 2002 on the file of Chief Judicial Magistrate Court, Thiruvanthapuram against the judgment of acquittal of the accused dated 23.4.2004. The first respondent herein was the accused in that case which was filed by the complainant alleging commission of the offence under Section 138 of N.I. Act. 2. The case of the complainant is briefly as follows. The accused owed an amount of Rs.1,15,000/- to the complainant towards the value of air tickets purchased by him from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 31.3.2003 drawn on the Hyderabad branch of the I.C.I.C.I Bank Ltd. Crl.A. No. 1311 of 2004 2 for the said amount. The said cheque when presented for collection through the Corporation Bank, Thiruvananthapuram the same was returned due to insufficiency of funds in the account of the accused. Thereupon the complainant issued a registered notice to the accused through his counsel on 4.7.2002. Though the postal authorities issued intimation about the arrival of the said notice, the accused did not turn up to receive the same. Hence the notice was returned by the postal authorities with the endorsement 'not claimed'. But even thereafter the accused has not returned the amount covered by the cheque. Hence the complaint was filed. 3. In the Chief Judicial Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to P6 were marked. No evidence was adduced from the defence side. The Learned Chief Judicial Magistrate, on considering the evidence, found that Ext.P1 cheque was issued by the accused in favour of the Crl.A. No. 1311 of 2004 3 complainant in discharge of a legally enforceable debt. But the accused was acquitted under Section 255(1) Cr.P.C on the ground that there was no valid notice to the accused as contemplated under Section 138 of the N.I. Act. Against that judgment of acquittal, the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the court below committed a serious error in holding that notice of demand has not been duly served on the accused. The learned counsel for the appellant submitted that since Ext.P6 registered notice was returned 'unclaimed' it can be very well be treated as valid and proper notice. Learned counsel for the appellant submitted that since the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act, the Crl.A. No. 1311 of 2004 4 Court below ought to have convicted the accused under Section 138 of the N.I. Act and should have imposed suitable sentence. The learned counsel for the first respondent supported the judgment of the Court below. 6. The Managing Partner of the complainant firm was examined as PW1. PW1 deposed that the accused owed an amount of Rs.1,15,000/- to the complainant, a partnership firm, for purchasing air tickets from the complainant. Ext.P1 cheque was issued for an amount of Rs.1,15,000/-. The cheque was presented by the complainant through his bank, Corporation Bank, Government Press Road, Thiruvananthapuram. Ext.P2 dishonour memo dt.25.6.2002 was received by the complainant on 28.6.2002. The banker intimated the complainant that the cheque has been dishonoured due to insufficiency of funds. The account of the complainant was debited with an amount of Rs.375/- towards Crl.A. No. 1311 of 2004 5 collection charges. Ext.P4 notice was sent to the accused through the advocate of the complainant on 4.7.2002 requesting payment of the amount covered by the cheque. Ext.P5 is the postal receipt. Accused was given intimation about the notice on 6.7.2002 by the postal authorities. He refused to claim the notice. Ext.P6 is the registered lawyer notice sent to the accused, which was returned with the endorsement 'unclaimed'. PW1 deposed that inspite of the lawyer notice, the accused did not repay any amount. 7. The defence case is one of total denial. The accused contended that no amount is due from him to the complainant firm and that he has not issued any cheque to the complainant firm. The allegation of the accused is that the complaint was filed by the complainant firm by getting bounced the cheque entrusted with it by him. But no evidence, either oral or documentary, was adduced by the accused to substantiate his contention or to rebut the legal Crl.A. No. 1311 of 2004 6 presumption available under Sections 118 and 139 of the N.I. Act. 8. In the decision reported in Indo Automobiles v. Jai Durga Enterprises (2008(3) KLT 480 (SC), it was held that once notice has been sent by registered post with acknowledgment due in correct address, it must be presumed that service has been made effective. 9. In the decision reported in C.C. Alavi Haji v. Palapetty Muhammed and another ((2007) 6 SCC 555), it was held that the Supreme Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. 10. In the decision reported in South Indian Bank Ltd. v. Union of India (2004 (4) KLT 657), it was held that when notice sent by registered post is returned unclaimed, it could very well be Crl.A. No. 1311 of 2004 7 treated as valid and proper notice. In the present case, the accused has no case that the address shown in Ext.P6 registered notice is incorrect. Therefore it can be treated that there was proper service of notice. Since execution of Ext.P1 cheque is proved by the complainant, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. The accused has not adduced any evidence to rebut that presumption. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, he is convicted for that offence. 11. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy Crl.A. No. 1311 of 2004 8 should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,25,000/- would meet the ends of justice. 12. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 336 of 2002 on the file of the C.J.M. Court, Thiruvananthapuram under Section 255(1) is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.1,25,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said Crl.A. No. 1311 of 2004 9 amount within the aforesaid period, she shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm