IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 CRL.A.No.717 of 2001(A) ---------------------------- CC.399/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT: -------------- A.P. VARKEY, ARACKAL HOUSE, MAROTTICHODU, MATTOOR, KALADY. BY ADV. SRI.K.SREESAKUMAR RESPONDENTS/ACCUSED: ------------------------------- 1. T.U. KUNJU, PATTARAKALAYIL HOUSE, MADHUVELLY, AYYAMKUDY P.O., VAIKOM. (OFFICE ADDRESS T.U.KUNJU, JUNIOR SUPERINTENDENT, N.H.DIVISION, VITTILA, ERNAKULAM) 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.P.ASHOK KUMAR PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.717 of 2001 ------------------------------------------------ Dated this the 1st day of February, 2008 JUDGMENT The complainant in C.C.399/96 on the file of the Judicial First Class Magistrate's Court-II, Aluva is the appellant in this appeal assailing the acquittal of the first respondent by the court below of offence under Section 138 of the N.I. Act under Section 255 (1) of the Cr.P.C. 2. The appellant filed complaint in the court below complaining of commission by the first respondent of an offence punishable under Section 138 of the N.I. Act alleging inter alia that the first respondent borrowed from him an amount of Rs.35,000/- on 05/08/95 promising to repay the same within two months that on demand for repayment of the amount, he issued Ext.P1 cheque dt.30/11/95 drawn on his account at the Perumbavoor branch of the Crl. Appeal No.717 of 2001 -2- Ernakulam District Co-operative Bank for an amount of Rs.35,000/-; that on forwarding the cheque for collection through his account at the Angamaly branch of the Union Bank of India, it was returned dishonoured by the drawee bank under Ext.P3 memorandum for reason of “insufficiency of funds” in the account of the first respondent; that the dishonoured cheque along with Ext.P3 memo was forwarded to him along with Ext.P4 memo by his bankers; that thereupon the original of Ext.P5 lawyer notice was issued to the first respondent intimating him of the dishonour of cheque and demanding payment of the amount covered by the cheque under Ext.P6 postal registration receipt, but that it is returned unclaimed by the first respondent and he has not cared to pay up the amounts covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an Crl. Appeal No.717 of 2001 -3- offence punishable under Section 138 of the N.I. Act. 3. The counsel for the first respondent has no case that Ext.P1 cheque was being dishonoured not for reason of “insufficiency of funds” in the account of the first respondent. The court below has found that the accused issued Ext.P1 cheque to the complainant in discharge of debt of Rs.35,000/- and that it was being returned dishonoured for reason of “insufficiency of funds” in the account of the first respondent. Those aspects are not assailed before me by the counsel for the first respondent. It is on the ground that there is no proper notice to the first respondent under proviso(b) to Section 138 of the N.I. Act and that therefore, there is no cause of action for the complainant that the first respondent was acquitted by the court below. Crl. Appeal No.717 of 2001 -4- 4. It is contended before me by the learned counsel for the appellant that Ext.P7 is the returned notice issued to the first respondent under Ext.P6 postal registration receipt and that it is returned for the reason that it is unclaimed; and that, that is sufficient notice in compliance with proviso (b) to section 138 of the N.I. Act and that therefore, the first respondent ought to have been convicted and sentenced by the court below and the order of acquittal therefore, deserves to be reversed. 5. It is seen from Ext.P7 that it was returned with certain endorsements which show that the addressee was absent - on 06/05/96 and 07/05/96 and that intimation was given but that the notice was not claimed and hence returned to the sender. PW3 is the postman delivering postal articles in the area wherein the first respondent is working as Junior Crl. Appeal No.717 of 2001 -5- Superintendent. The address of the first respondent noted on Ext.P7 is “Mr.T.V.Kunju, Junior Superintendent, N.H. Divison, Vyttila, Ernakulam”. Counsel for the first respondent has no case that the first respondent at the relevant time was not working in that office as Junior Superintendent. PW3 the postman has given evidence that he was working in Vyttila Post Office for the period from 04/05/96 to 20/05/96; that the address shown in Ext.P7 comes within his beat; that he had taken Ext.P7 on 06/05/96 for the first time to deliver it to the addressee at his office but that the addressee was not there and on the next day also he was not there and therefore, intimation was delivered but that he was not aware as to whether the addressee has collected the postal article or not, as according to him, the postal articles will be kept for seven days at the office to enable Crl. Appeal No.717 of 2001 -6- the addressee to receive the article after delivery of intimation and that after seven days it would be returned to the sender and that is by the office and not by himself. In cross examination, he has deposed that he is not aware as to whom was the intimation given and that he is not aware of the person who received the intimation and however, that on 06/05/96 and 07/05/96 the first respondent/ addressee was absent. There is no suggestion even that the first respondent was present in the office either on 06/05/96 or on 07/05/96. Nor has he got a case that he was not working in the office then. To PW1 a question has been asked in cross examination as to whether notice was not being sent to the first respondent in his house address as his house address is not known to which PW1 has given answer in the negative. But all the same, it is worthy to remember that if at all a postal Crl. Appeal No.717 of 2001 -7- article is to be delivered to a person who is working in an office it has to be addressed to the office only as during delivery hours of postal articles such addressees would be in office only and it cannot be delivered to him if addressed to his residential address. Notice issued to the first respondent in his official address in the circumstances is sufficient notice as contemplated in proviso (b) to Section 138 of the N.I. Act and the first respondent has to blame himself if he has not been informed by his own colleagues in his office as regards intimation received at the office as urged by his counsel. No evidence at all is adduced on the side of the first respondent except producing an attendance register to show that he was on leave on those days. The first respondent when questioned under Section 313 Cr.P.C with respect to the incriminating circumstances Crl. Appeal No.717 of 2001 -8- appearing in evidence from the testimony of PW3/the post man, his answer is that he is not aware of intimation having been received. That is no fault of the person who has issued Ext.P7 registered notice or the post man and if nobody in his office has told him about the receipt of the intimation, the first respondent cannot avail of any benefit thereby putting the appellant to loss on that count. 6. Consequently, the acquittal of the first respondent of offence under Section 138 of the N.I. Act by the court below, in the circumstances, is improper and illegal. I hold that all statutory formalities do stand complied with; that there is cause of action for the appellant; and that the first respondent having not made payment of the amounts covered by the cheque within the statutory period from the date of intimation of Ext.P7 notice or ever thereafter till the Crl. Appeal No.717 of 2001 -9- complaint was filed, he has committed an offence punishable under Section 138 of the N.I. Act and he is liable to be convicted and sentenced for that offence. 7. In the result, allowing this Criminal Appeal and in reversal of the judgment assailed, I convict the first respondent of offence punishable under Section 138 of the N.I. Act. As desired by the counsel for the first respondent, the case is adjourned to 07/02/08 for questioning the first respondent regarding the sentence. Call on 07/02/08. K.P.BALACHANDRAN, JUDGE kns/-