Chungath Medical Stores and C. D. Unnimon v. K. M. Elias and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 24TH DAY OF JULY 2012/2ND SRAVANA 1934 Crl.Rev.Pet.No. 2374 of 2005 ( ) -------------------------------CRA.963/2004 of I ADDL.SESSIONS COURT, ERNAKULAM CC.1471/1998 of J.M.F.C.,PERUMBAVOOR REVISION PETITIONER(S)/APPELLANTS/ACCUSED:: --------------------------------------------------------------------- ## 1. CHUNGATH MEDICAL STORES, REPRESENTED BY ITS MANAGING PARTNER C.D.UNNIMON, CHUNGATH HOUSE, CHOWANNUR P.O., KUNNAMKULAM. ## 2. C.D. UNNIMON, MANAGING PARTNER, CHUNGATH MEDICAL STORES, CHUNGATH HOUSE, CHOWANNUR P.O., KUNNAMKULAM. BY ADV. SRI.GEORGE ABRAHAM ## RESPONDENT(S)/RESPONDENT/COMPLAINANT/STATE:: ---------------------------------------------------------------------------- ## 1. K.M.ELIAS, S/O.MATHAI, - KARUPPAN HOUSE, PRALAYAKKAD, THURITHY VIA. KURUPPAMPADI, PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.RAJASEKHARAN NAIR R2 BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ## **P.S.GOPINATHAN, J.** **---------------------------------------Crl.R.P.NO. 2374 OF 2005 ---------------------------------------Dated this the 24[th] day of July, 2012** ## **O R D E R** Accused 1 and 2 in C.C.No.1471/1998 on the file of the Judicial Magistrate of the First Class, Perumbavoor are the revision petitioners. The first respondent herein prosecuted the revision petitioners along with another (the third accused), alleging offence under Section 138 of the Negotiable Instruments Act, with a plea that a sum of Rs.50,000/- was due to the first respondent from the first revision petitioner firm of which the 2[nd] revision petitioner and the third accused were partners. In discharge of the liabilities, Exhibit P1 cheque dated 10/2/1998 drawn on State Bank of Travancore, Perumbavoor Branch was issued and that when presented for collection it was returned Crl.R.P.NO. 2374 OF 2005 2 dishonoured with the endorsement 'exceeds arrangements'. Notice demanding discharge of liability was returned unserved and that the liability was not discharged. 2. The revision petitioners and the other accused pleaded not guilty. Therefore, they were sent for trial. During the course of the trial, the third accused expired. On the side of the prosecution, the first respondent was examined as PW1 and Exhibits P1 to P6 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioners took a plea that they owe no amount to the first respondent and that they had been running a medical shop at Perumbavoor Town in a rented building till December, 1997 and thereafter the building was kept closed. The Crl.R.P.NO. 2374 OF 2005 3 landlord of the building trespassed into the room and removed all the articles kept in the shoproom including some signed blank cheques and misusing one of the signed blank cheques, the prosecution was launched. However, no defence evidence was adduced. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilty as against the petitioners. Consequently, the petitioners were convicted. The first petitioner was sentenced to pay a fine of Rs.5,000/-. The 2[nd] petitioner was sentenced to simple imprisonment for three months. He was further directed to pay Rs.51,000/- as compensation to the first respondent under Section 357(3) of the Code of Criminal Procedure with a default sentence of simple imprisonment for 45 days. Aggrieved by the above conviction and sentence, the Crl.R.P.NO. 2374 OF 2005 4 revision petitioner preferred Crl.A.963/2004 before the Sessions Judge, Ernakulam. The First Additional Sessions Judge, to whom the appeal was made over, by the impugned judgment dismissed the appeal by confirming the conviction and sentence. The legality, correctness and propriety of the above conviction and sentence as confirmed in appeal this revision petition is preferred. 3. I have heard the learned counsel on either side. Perused the judgment and evidence on record. 4. In support of the liability, issuance of cheque, dishonouring of the cheque, issuing notice and nondischarge of liabilities the first respondent as PW1 had given evidence. Though PW1 was subjected the searching cross-examination, in fact, no material was disclosed to show that Exhibit P1 was a cheque Crl.R.P.NO. 2374 OF 2005 5 stolen by the landlord of the petitioners as alleged by them. There is nothing on record to show that the petitioners had been in the practice of keeping signed blank cheques in their shoprooms or that the 1[st] respondent any way joined hands with the landlord. It is not disputed that the alleged trespass by the landlord into the leasehold was long after the building kept closed. The story of the petitioners that for such a long time they kept locked the shop room with their blank singed cheques inside the shop building does not instil confidence. The defence suggestion remains to be a suggestion as there is no supporting evidence. No attempt was made by the petitioners to controvert the evidence of PW1 or to rebut the legal presumptions in favour of the first respondent regarding the liability and the Crl.R.P.NO. 2374 OF 2005 6 issuance of the cheque in discharge of the liability thereof. Therefore, I find that the courts below were in PW1 and at a justified believing arriving conclusion that Exhibit P1 cheque was issued by the petitioners in discharge of the liability. 5. The strong argument that was advanced by the learned counsel for the petitioner is that the first respondent was aware that the building was kept closed by the petitioners and that the first respondent was also aware of the correct residential address of the 2[nd] petitioner. But instead of posting notice in the correct address, the notice was posted to the shop address with an ulterior motive not to serve the notice. So according to the learned counsel, there is no proper notice accepted by the petitioners so as to have a cause of action on non- Crl.R.P.NO. 2374 OF 2005 7 discharging of the liability. In support of his arguments the learned counsel relied upon the decisions reported in Raja Kumari v. Subbarama Naidu [2004 (3) KLT 799 (SC)], Jithendranath v. Walson Laboratories and Others [2007 (1) KHC 97], K.O.Chacko v. Kurian P.V. & Others [2006 (3) KLJ 29] and Anil Raj v. Integrated Finance Co. Ltd. [2005 (2) KLT 972]. I have carefully gone through the above precedents and the evidence on record. Though it has come out in evidence that during the trial stage the fist respondent was aware that the shop was closed, there is nothing on record to conclude that the first respondent was aware that the shop was closed on the date when the notice was caused. Exhibit P1 would show that the account was maintained in the name of the firm which was doing Crl.R.P.NO. 2374 OF 2005 8 business in the address shown in the notice. There is no case for the petitioners that the address shown in the notice as that of the firm is not correct. There is also nothing on record to come to a conclusion that the notice was caused on the business address with any ulterior motive or that the first respondent had got any nexus with the landlord of the petitioners so as to persuade the first respondent to prosecute the petitioners for an offence under Section 138 of the Negotiable Instruments Act. In the peculiar circumstances revealed out by the evidence, I find that the ratio of the above decisions referred by the learned counsel for the petitioners cannot be applied to the case on hand. On the other hand, the presumption under Section 27 of the General Clause Act is to be applied because the Crl.R.P.NO. 2374 OF 2005 9 notice was posted in correct address with postages prepaid and sent by registered post. In the above circumstance, I have to concur with the courts below and find that there was deemed notice demanding discharge and the notice could not be served since the petitioners closed the business. There is no case for the petitioners that they had intimated the closing of the business to the postal authorities or the address in which they were available to serve a notice or to redirect the notice that may be received in the post office addressed to the business establishment. It is not to disputed that the petitioners were running a very good business and they had got a very goodwill. So, in the normal course, the petitioners are expected to intimate the change of address to the postal authorities. Had the Crl.R.P.NO. 2374 OF 2005 10 petitioners intimated the change of address to the postal authorities, there would not have any occasion to return the notice. Therefore, it had to concluded that the notice sent by the first respondent demanding discharge of the liability was happened to be returned only because of the failure of the petitioners to furnish the change of address and not because of any intervention by the first respondent with the postal authorities. First respondent can no way be found faulty. In the above circumstance, I am unable to accept the arguments advanced by the learned counsel for the petitioners regarding non-issuance of notice. I find that the conviction under challenge is based upon cogent evidence and requires no interference. 6. Regarding the sentence, I find that the 2[nd] Crl.R.P.NO. 2374 OF 2005 11 petitioner, who had to take care of the entire burden of the business subsequent to the death of his bother, who was the third accused, had suffered stroke and had been hospitalised. It was also submitted by the learned counsel for the petitioner that due to some unforeseen reasons the business had become a failure. Therefore, the 2[nd] petitioner is entitled to a little leniency and I find that a sentence of imprisonment till the rising of the court for the 2[nd] petitioner with a fine of Rs.50,000/- would meet the ends of justice. Sentence awarded by the trial court to the 1[st] petitioner is very lenient and requires no interference. 7. In the result, this revision petition is allowed in part. While confirming the conviction against both petitioners, the sentence as against the 2[nd] Crl.R.P.NO. 2374 OF 2005 12 petitioner is reduced to imprisonment till the rising of the court and a fine of Rs.50,000/- (rupees fifty thousand only) with a default sentence of simple imprisonment for three months. The fine imposed against the first petitioner is sustained. In the event, the fine is realised a sum of Rs.50,000/(rupees fifty thousand only) shall be paid to the first respondent as compensation. The revision petitioners are granted four months time to remit the fine amount. The first respondent is at liberty to apply for withdrawing the amount, if any, deposited by the revision petitioners. The trial court shall see the execution of sentence and report compliance. ## **P.S.GOPINATHAN JUDGE** DSV/- Crl.R.P.NO. 2374 OF 2005 13