Binu Keloth v Hemachandra Mohan and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** **Crl.MC.No. 6071 of 2018** **AGAINST THE ORDER/JUDGMENT IN ST 1965/2017 of J.M.F.C.-II, ALUVA** ## **PETITIONER/S:** **BINU KELOTH, AGED 44 YEARS 386, RAGABINDU (H), S/O.RAMAKRISHNAN K.P., KADIROOR P.O., THALASSERY, KANNUR 670042, NOW RESIDING AT 1-1, GALAXY VESTA, P.J.ANTONY ROAD, EDAPPALLY P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN SMT.MARIAN G.M.THARAKAN SRI.M.V.DAS SRI.S.JAYAKUMAR SRI.S.JAYAKUMAR** ## **RESPONDENT/S:** **1 HEMACHANDRA MOHAN, 48/1978G, PERUMPOTTE ROAD, RAMKODAM LANE, ELAMAKKARA, KOCHI-682026. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 6071 of 2018** ## **O R D E R** The petitioner is the accused in S.T. No.1965 of 2017 on the files of the court below. 2. The first respondent herein filed Annexure-A1 complaint against the petitioner before the court below alleging offence under Section 138 of the Negotiable Instruments Act. 3. The petitioner has filed this Crl.M.C. praying for quashing Annexure-A1 complaint and further proceedings against the petitioner in the above said case. 4. Heard. 5. The learned counsel for the petitioner has argued that since the petitioner was abroad from 2014 onwards, the petitioner was not available in India to issue the cheque on ## **Crl.MC.No. 6071 of 2018** -3- 5.10.2015 as alleged in Annexure - A1 complaint and in the said circumstances, Annexure-A1 complaint and further proceedings against the petitioner cannot be sustained. 6. I have gone through Annexure-A1 complaint. Annexure-A1 complaint does not mention as to whether the cheque was issued in India or abroad. It is settled law that the cause of action for a prosecution under Section 138 of the N.I. Act does not depend upon the place of issuance of the cheque. Therefore, the place at which the cheque was issued and whether the petitioner was available at that place for issuing the cheque are matters for evidence. Therefore, Annexure - A1 complaint cannot be quashed on that ground. 7. The petitioner produced a copy of the passport ## **Crl.MC.No. 6071 of 2018** -4before this court along with this Crl.M.C. Since many seals in the copy of the passport produced by the petitioner were not clear and readable, this court directed the petitioner to produce the original passport or the copy of the passport attested by the Embassy of India. However, a true copy of the passport, signed by the learned Advocate, alone was produced by the petitioner. It is not discernible as to how the lawyer could attest the passport and produce it as Annexure-7, if the petitioner was not available in India during the last week. If he was available in India, it is not discernible as to why the petitioner was reluctant to produce the original passport before this court for the perusal of this court. It is also not discernible as to why the copy of the passport attested by the Embassy could not be ## **Crl.MC.No. 6071 of 2018** -5- produced before this court as required by this court if the petitioner was abroad during the last week. The contention of the petitioner is that after leaving for UAE on 15.1.2015, the petitioner reached India only on 18.10.2017. Annexure7, copy of the relevant pages of the passport produced by the petitioner, would show that there was an exit from UAE on 4.2.2015. Annexure - 7 would further show that there is a seal of Chennai Air Port on 8.7.2017. In view of the above reasons also, it cannot be said, without recording the evidence, that the contention of the complainant with regard to the issuance of cheque is not correct. In view of the above reason also, Annexure-A1 complaint cannot be quashed at the threshold. 8. The learned counsel for the petitioner has further ## **Crl.MC.No. 6071 of 2018** argued that the demand notice was returned with the endorsement 'addressee left India' and in the said circumstances, there was no demand notice and consequently, Annexure-A1 complaint cannot be sustained. The learned counsel relied on the decision of this court in Usman M v. M.P. Muhammed Ali and another [2017 (4) KHC 565] to support his argument. In Usman (supra), the conviction and sentence passed by the trial court, as affirmed by the appellate Court, had been the subjectmatter of consideration by the court. The evidence showed that the notice was not served on the accused therein, as the accused was not in India at the time when the notice was allegedly issued. In this case, the trial is not over. Whether the petitioner was actually in India or whether he had left ## **Crl.MC.No. 6071 of 2018** -7- India to evade the notice, is a matter for evidence and hence, the same cannot be decided in this Crl.M.C. filed under Section 482 Cr.P.C. The Apex Court in H.M.T.Watches Ltd. v. M.A. Abida and another [2015 (2) KHC 264] held that the High Court should not exercise the jurisdiction under Section 482 Cr.P.C. to quash the complaint taking factual defences and the disputed question of facts can be decided only in the trial. Since the service of notice on the petitioner is a question of fact, which can be decided only after recording the evidence, the said factual defence cannot be taken into consideration to quash the criminal complaint at the threshold. It is also to be noted that eventhough the petitioner claimed that he did not receive the notice sent by post, he did not make payment of ## **Crl.MC.No. 6071 of 2018** -8- the cheque amount within 15 days of receipt of summons from the court in respect of Annexure - A1 and submit to the court that he had made payment within fifteen days of receipt of summons. 9. The three Judge Bench of the Apex Court in Alavi Haji v. Muhammed [2007 (3) KLT 77 (SC)] held in paragraph 17 thus: - “Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under S. 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who ## **Crl.MC.No. 6071 of 2018** -9- does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under S. 138 of the Act, cannot obviously contend that there was no proper service of notice as required under S. 138, by ignoring statutory presumption to the contrary under S. 27 of the G.C. Act and S. 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation”. In Alavi Haji (supra), the notice was returned with an endorsement that the addressee was abroad. The Apex Court on the facts held that the requirements of Section 138 of the N.I. Act had been sufficiently complied with. In the case on hand, the summons was served on the petitioner on the address shown in the complaint. Thereafter, the ## **Crl.MC.No. 6071 of 2018** -10- petitioner approached this court with the above Crl.M.C. instead of making payment of the cheque amount within fifteen days. Therefore, it can be safely said on the facts of the case on hand that the requirements of Section 138 of the N.I. Act had been complied with. For the said reason also, the argument in this regard cannot be accepted. No other argument has been advanced before me by the learned counsel for the petitioner to quash Annexure-A1 complaint. 10. I have gone through Annexure-A1 complaint and I am satisfied that Annexure-A1 complaint contains ingredients to _primafacie_ constitute the offence under Section 138 of the N.I. Act. In the said circumstances, I find no reason to quash Annexure-A1 complaint as sought for. ## **Crl.MC.No. 6071 of 2018** -11- In the result, this Crl.M.C. stands dismissed. Dated this the 24[th] day of September 2018. ## sd ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/ // True copy // PA to Judge ## **APPENDIX OF Crl.MC 6071/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT ST.NO.1965/2017 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, ALUVA DATED 13.1.2016 ANNEXURE A2 TRUE COPY OF CHEQUE ALLEGED TO BE ISSUED BY THE ACCUSED DRAWN ON FEDERAL BANK BEARING THE DATE 30.5.2015 ANNEXURE A3 TRUE COPY OF LAWYERS NOTICE DATED 7.11.2015 ISSUED TO THE ACCUSED TO HIS THARAWAD HOUSE VIZ RAGA BINDU, KATHIROOR P.O., THALASSERY** **Crl.MC.No. 6071 of 2018** |**ANNEXURE A4**|**TRUE COPY OF FIRST PAGE OF THE POSTAL**| |---|---| ||**COVER PRODUCED BY THE ACCUSED BEFORE**| ||**THE COURT BELOW**| |**ANNEXURE A5**|**TRUE COPY OF ACKNOWLEDGMENT CARD AS**| ||**PRODUCED BY THE COMPLAINANT**| |**ANNEXURE A6**|**TRUE COPY OF PASSPORT OF THE ACCUSED**| |**RESPONDENT'S/S**|**EXHIBITS:**<br> **NIL**|