A.T. Nanu v. V. Rajan & State

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.N. Krishnan
Judgment Date: 2009-08-20
Court Decision / Holding: Appeal dismissed; acquittal upheld; no interference with the Magistrate’s order.
Final Disposition: Appeal dismissed; acquittal upheld

Parties to the Case

Appellants / Petitioners

A.T. Nanu

Respondents

V. Rajan
State of Kerala, rep. by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Deeppu Thankan

Counsels for Respondents

• Public Prosecutor C.M. Nazar

Case Synopsis & Summary

This is a criminal appeal under Section 138 of the Negotiable Instruments Act (NI Act) filed by the complainant-appellant challenging the acquittal recorded by the Judicial First Class Magistrate, Nadapuram, in C.C.384/2001. The appellant contends that he lent money to the accused, who promised repayment; to discharge the liability, the complainant issued a cheque for Rs. 85,000 after advancing 8,500 rials in Qatar, where both resided as friends in the same flat. The cheque was dishonoured on presentation for encashment. Notices were issued under NI Act, one to the Qatar address and another to the local address; the Qatar notice did not come back, while the local notice indicated the accused was away in a gulf country. The trial court found the evidence insufficient to prove the cheque’s execution and the notice under Sec. 138(b). The appellant argues that the documentary evidence, bank leaf chronology, and notices corroborate liability and that Sec. 27 of the General Clauses Act should permit a presumption in the complainant’s favour. The respondents defend that the complainant is a moneylender, that the accused did not borrow, and that the blank cheque was security; discrepancies in dates and addresses undermine the prosecution case. The High Court, following Alavi Haji v. Muhammed, holds that notice under Sec. 27 GC Act requires correct address; the notices here were not properly addressed, so the presumption cannot be drawn, and the acquittal is sustained.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 138(b) of the Negotiable Instruments ActSection 27 of the General Clauses Act

Legal Doctrines & Maxims

Men may lie but circumstances will never lie.
Presumption under Section 27 of the General Clauses Act requires correct address for notice.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant-complainant asserts that he lent money to the accused, who promised repayment, and a cheque for Rs. 85,000 was issued to discharge the liability after an advance of 8,500 rials in Qatar. Upon dishonour, two notices were issued, one to the Qatar address and one to the local address; the Qatar notice purportedly did not return while the local notice indicated the accused was away in the Gulf. The complainant contends that the documentary evidence and the sequence of events link the accused to a liability under Sec. 138 NI Act and that proper notice was issued; the presumption under Sec. 27 GC Act should apply. Defence submissions revolve around the theory that the complainant, a moneylender, leveraged a missing or disputed loan arrangement and that a blank cheque was taken as security; inconsistencies in cheque leaves, dates, and addresses cast serious doubt on the prosecution’s case; and the notices were not properly addressed to trigger any statutory presumption.

Contentions of Respondents

The defence contends that the complainant arranged a loan via a third party; the accused did not borrow money and the cheque was taken as security; inconsistencies in account-opening, cheque leaf numbers, and dates, along with misaddressed notices, undermine the chain of proof; therefore, the acquittal should stand and the appeal should fail.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Alavi Haji v. Muhammed	2007 (3) KLT 77	Positive	Cited to establish that presumption under Section 27 of the General Clauses Act requires sending notice to the correct address; since notices were not properly addressed, the presumption cannot be attracted.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931** ## **CRL.A.No. 593 of 2003(A)** **-----------------------------------** ## **CC.384/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, NADAPURAM** **....................** ## **APPELLANT/COMPLAINANT:** **----------------------------------------** ## **A.T. NANU, AALATHAREMMAL HOUSE, VALAYAM POST, KALLACHI VIA, VADAKARA.** **BY ADV. MR.DEEPU THANKAN.** ## **RESPONDENTS/ACCUSED & STATE:** **----------------------------------------------------** **1. V. RAJAN, VILAKKOTTOOR POST, TOOVAKKUNNU VIA, THALASSERY, KANNUR.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 593 OF 2003 = = = = = = = = = = = = = = = Dated this the 20[th] day of August, 2009.** ## **J U D G M E N T** This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Nadapuram in C.C.384/01. It was a complaint filed u/s 138 of the Negotiable Instruments Act and the Court below acquitted the accused. It is against that decision the complainant has come up in appeal. 2. The points that arise for determination in the appeal are; (1) Whether there are materials to hold that the accused has committed the guilt u/s 138 of the Negotiable Instruments Act? (2) Is there anything to interfere with the decision rendered by the Court below? ## **Points:** 3. Heard the learned counsel. It is the case of the **Crl.A. No. 593 OF 2003** -:2:- complainant that himself and the accused were friends and they were residing in one room in a flat in Quatar. According to him when the accused was about to leave for India in March, 1998 he requested to lend a sum of 10,000/- Rials. He had promised to repay it and on that understanding the complainant had advanced 8,500/- rials for which the complainant had issued a cheque for Rs.85,000/-. When the cheque was presented for encashment it was returned with the endorsement of insufficiency of funds. Two notices were issued, one to the Quatar address and the other to the local address. The notice issued to Quatar address did not come back whereas the other was returned stating that the accused is away at gulf country. The Court below analysed the evidence of PWs.1 and 2 and arrived at a decision that the case is not proved. 4. It is the case of the defence that the complainant is a money lender by profession and the accused introduced one Shankaran to the complainant for the purpose of loan and at that time when some amount was advanced a blank cheque ## **Crl.A. No. 593 OF 2003** -:3:- was taken from the accused as security and that he had not borrowed any amount from the complainant. PW1 is the complainant. Though they claimed to be residing in the same flat for a period of four years when a question was put to the complainant that the accused was working in Amtco trading company he pretends ignorance. When another question was put whether the letters were addressed to in the official address of the accused, he denies the same. He does not know whether the accused was available in the native place at the time of issuance of Ext.P4. He has not produced any document to show that the address shown in Ext.P5 is correct address in the gulf country. He would further add, “................................................................................ .................................................................................. The learned Magistrate referred to a very important factor that the accused had opened an account in the Bank on 12.6.95. He was given a cheque together with leaf numbers 480711 to 480720. The disputed Ext.P1 cheque is the first cheque. It is also brought out that the cheque leaf bearing No.450718 was ## **Crl.A. No. 593 OF 2003** -:4:- presented for encashment in August, 8[th] 1997, and the cheque was dated 5.7.97. So the 18[th] cheque leaf in the cheque book was presented as early as on 8.8.97. How can the first cheque of 480711 be issued in April, 1998. One cannot say that deliberately that cheque leaf is left and only other cheques were issued for the reason that one cannot envisage such a situation in 1997 that he is going to borrow some amount in March or April 1998. That is why it is often said that 'men may lie but circumstances will never lie'. So the circumstance is a strong evidence to show it against the case of the complainant. 5. Now regarding the notice. It is to be stated that one notice was admittedly issued by the complainant to his home address knowing that he was not there. In the evidence also he has admitted he does not know whether the accused was in in his native place. Then the learned Magistrate has referred to the notice issued to the address in the gulf country. Ext.P5 the Post Box Number is given as 30190 Doha Qatar. Ext.P7 is a document summoned and proved on the side of the ## **Crl.A. No. 593 OF 2003** -:5:- complainant. Even as per that document the Post Box No. of the accused is seen as 30524 Doha quarter. So the correct address of the accused found as per the document produced by the complainant is 30524 Doha, Qatar. But the letter is addressed to Post Box No.30190 Doha, Qatar. So the letter is not addressed to a proper address. 6. The Hon'ble Apex Court in the decision reported in _**Alavi Haji v. Muhammed (2007 (3) KLT 77)**_ held that “where payee despatches notice by registered post with correct address of drawer of cheque, principle incorporated in S.27 of General Clauses Act would be attracted”. So in order to draw a presumption u/s 27 of the General Clauses Act it is imperative to send the letter in the correct address. Here admittedly two notices are issued, one notice to a person knowing that he was not there and secondly in a wrong address. So the question of presumption u/s 27 of the General Clauses Act cannot be attracted. 7. Under S.138(b) of the Negotiable Instruments Act, in order to initiate a prosecution a notice has to be given in ## **Crl.A. No. 593 OF 2003** -:6:- writing. So here the notice is only given in a wrong address. So it does not comply with the statutory requirements. So from the materials available it is seen that the evidence is lacking to prove the execution of the cheque towards the discharge of the liability and it is also bad for proper notice u/s 138(b) and therefore the order passed by the learned Magistrate is perfectly in order and it does not call for any interference. Therefore the appeal fails and the same is dismissed. ## **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl.A. No. 593 OF 2003** -:7:- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 593 OF 2003 = = = = = = = = = = =** **J U D G M E N T** **20[th] August, 2009**