E. J. Joy v. Ratheesan C and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 3RD DAY OF JANUARY 2017 / 13TH POUSHA, 1938 CRL.A.No. 115 of 2009 AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 22/2009 DATED 12-01-2009 AGAINST THE ORDER/JUDGMENT IN STC 4768/2006 of J.M.F.C.-I, KANNUR DATED 25-07-2008 ....................... ## APPELLANT/COMPLAINANT: E.J. JOY, AGED 50 YEARS, S/O. JOSEPH, C/O. PARADISE LODGE, THOTTADA, KANNUR. BY ADV.SRI.P.U.SHAILAJAN ## RESPONDENTS/ACCUSED AND STATE : 1. RATHEESAN.C, AGED 34 YEARS, S/O. NARAYANAN,, CHINGAN HOUSE, C/O. DEEPA NIVAS, KOODALI -670 592, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JOHN JOSEPH R2 BY SMT. REKHA C. NAIR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Mary Joseph, J.** ------------------------------------------------Crl.A.No. 115 of 2009 -----------------------------------------------Dated this the 3[rd] day of January,2017 ## **J U D G M E N T** The complainant in S.T.C.No.4768/2006 on the files of the Judicial First Class Magistrate Court-I, Kannur (for short 'the court below') is the appellant herein. The judgment dated 25.7.2008 of the court below is under challenge. The complaint launched by the complainant against the accused under Section 142 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'), alleging commission of the offence punishable under Section 138 of the N.I. Act was taken on file by the court below as S.T.C.No.4768/2006. The accused was tried for the offence and was found not guilty by the court below by the judgment under challenge. 2. For the sake of convenience, the parties to this appeal are referred to hereinafter as the complainant and the accused in accordance with their status before the court below. 3. The facts of the case in brief are as follows:- Crl.A.No.115 of 2009 :-2-: The complainant and the accused were friends. The accused borrowed an amount of `50,000/- on 15.7.2006 agreeing to repay the same within two months. At the time of borrowal, a post dated cheque for a sum of `50,000/- was issued by the accused to the complainant. When sent for collection, the cheque was bounced for want of sufficient funds in the account of the accused. Thereupon a lawyer notice was caused to be issued to the accused, informing him about the reason for dishonour of the cheque and calling upon him to repay the amount due under the cheque within 15 days' time from the date of receipt of the notice. The notice was received by the accused. But he neither cared to send a reply notice nor to repay the amount as demanded within the time stipulated in the notice. In the aforesaid circumstances, the complainant was constrained to launch the prosecution. 4. The sworn statement of the complainant was recorded by the court below. The complaint was taken on file as S.T.C.No. 4768/2006. On process being served on the accused, he appeared Crl.A.No.115 of 2009 :-3-: before the court below. The particulars of the offence were read over and explained to him. He pleaded not guilty and faced trial. 5. The complainant was examined as PW1. Exts.P1 to P5 were marked. The accused was questioned under 313(1)(b) Cr.P.C with reference to the incriminating evidence brought on record by the complainant. The accused did not let in any evidence, when called upon to do so. 6. The court below formulated the following points for consideration : - “i. Whether the cheque was issued by the accused to discharge the debt or liability ? ii. Whether accused herein has committed the offence u/s.138 of N.I.Act ? Iii. If so, what is the proper punishment ?” 7. The points raised have been evaluated by the court below in the backdrop of the evidence adduced by the complainant. Point No.(ii) was found against the complainant. Accordingly, vide the judgment under the challenge, the accused was found not guilty for Crl.A.No.115 of 2009 :-4-: the offence punishable under Section 138 of the N.I. Act and was acquitted under Section 255(1) Cr.P.C. He was set at liberty after cancelling his bail bond. Aggrieved thereby the accused preferred the present appeal. 8. Point No.(i) was found by the court below in favour of the complainant, against which the accused had not preferred any appeal and thereby caused the finding to become final. It is the complainant who has filed the present appeal. The challenge raised is only against the finding of the court below on point No. (ii) in the impugned judgment. It was strictly based on that, the accused was found not guilty for the offence under Section 138 of the N.I. Act and consequentially, the complaint was dismissed vide the judgment under challenge. Point No.(ii) was dealt with by the court below in the following manner : “Point No.2. The learned counsel for the complainant has contended that on knowing dishonour of cheque all the formalities have been complied and so accused may dealt in accordance with law. On perusal of records Crl.A.No.115 of 2009 :-5-: show that Ext.P1 cheque dated 15.9.2006 was returned on 16.9.2006 with an endorsement as funds insufficient as per Ext.P2 memo issued by drawee bank. Thereafter the complainant herein caused to issue Ext.P3 statutory lawyer notice dated 21.9.2006 which served on the accused. Thus it comes out in evidence that complainant herein was caused to issue statutory lawyer notice within the statutory period. In this case the written complaint as well as chief affidavit show that the accused herein received the lawyer notice on 23.9.2006 but there is no documentary or other evidence to prove the date of serving of lawyer notice. The complainant would have been taken steps to examine the postman or adduced documentary evidence to show the date of receipt of lawyer notice. The date of receipt of lawyer notice is a fact in issue which shall be proved beyond reasonable doubt like any other fact in issue. The date of serving of lawyer notice is very crucial in order to calculate the accrual of cause of action. The learned counsel for the complainant has contended that the date bears on the postal impression of Ext.P5 acknowledgment card may be taken as the date of serving of lawyer notice. The Crl.A.No.115 of 2009 :-6-: aforesaid contention is not correct since there is no assurance that the date of serving of lawyer notice is corresponding with the date shown on the impression of postal seal. That is to say the date of serving of lawyer notice may not the same date which bears on the postal impression. ......... Thus it come out in evidence that complainant has miserably failed to comply all the formalities as envisaged under the statute or rather the complainant would have been taken steps to prove the actual date of serving of lawyer notice so as to calculate the date of accrual of cause of action. Therefore, this point is found against the accused.” 9. Sri.P.U.Shylajan, the learned counsel for the complainant urged that the court below is highly erred in its reasoning as above to arrive at a finding that the complainant had failed to prove the date of service of lawyer notice on the accused. According to him, the copy of the lawyer notice, the postal receipt and the acknowledgment card were marked in evidence before the court below respectively as Exts.P3, P4 and P5 without any opposition being raised by the defence on any count. Despite the marking of Crl.A.No.115 of 2009 :-7-: those documents in evidence from the side of the complainant, the court below found that there is total want of documentary evidence regarding the date on which lawyer notice was served on the accused. 10. The learned counsel has drawn the attention of this Court to the dictum in **Ramesh** v. **M.M.Badrudheen and another** [2009(2) KLT 949] wherein a matter of similar nature had considered by this Court. Paragraph 7 of the cited decision being relevant is extracted for convenient reference. “.................But the question involved is whether there was actual service of notice on the accused and in the facts and circumstances involved, if any challenge is raised as to the non service on whom was the burden to establish such non service. Accused has not advanced any defence that he did not receive the notice, when the complainant examined as PW1 was subjected to cross examination. Even when questioned under S.313 of the Cr.P.C. he did not raise such a defence. Still the learned Magistrate found merit in the arguments canvassed by the counsel appearing for the accused that in order to sustain a prosecution under S.138 of the N.I.Act against an offender, the complainant thereafter has to prove actual service of notice and Crl.A.No.115 of 2009 :-8-: in fact, the date of service of notice also established his cause of action.............” 11. It is exposed from the aforesaid dictum that the complainant need not have to prove the actual service of notice when that was not disputed or challenged by the accused. 12. In the backdrop of the aforesaid finding of the court below, the pleadings in the private complaint filed as S.T.C. No.4768/2006 and the oral evidence of the complainant, who was examined before the court below as PW1 were analysed. In complaint, specific and precise pleading was made by the complainant to the effect that the lawyer notice dated 21.09.2006 was received by the accused on 23.09.2006. Similarly, PW1 has also stated during examination that lawyer notice was received by the accused on 23.09.2006. It is evidenced from Ext.P4 postal receipt that lawyer notice was issued to the accused by registered post with acknowledgment due. Ext.P5 is the acknowledgment card. Only when a registered postal article is delivered to the Crl.A.No.115 of 2009 :-9-: addressee, the acknowledgment card would be returned to the sender. If the addressee was not found or the postal article is refused by him to take delivery of, then alone, the same as such with the reason for returning it endorsed therein by the postman would be returned to the sender. In the case on hand, acknowledgment card so returned to the complainant was produced before the court below and marked without any opposition being raised against it on any aspects, as Ext.P5. The learned counsel for the complainant has invited the court's attention to the seal impressed on Ext.P5 by the postal authority which bears the date 23.9.2006. The learned counsel contended that despite the evidence as aforesaid, made available by the complainant, the court below observed that documentary evidence is totally lacking to establish the date of service of lawyer notice on the accused. The learned counsel has further drawn this Court's attention to the facts sworn to by PW1 in the affidavit filed in lieu of chief examination that "പ്രസ് നനനോടട്ടീസസ് നമേൽ പ്രതതി 23-09-2006 തട്ടീയ്യതതി Crl.A.No.115 of 2009 **==> picture [28 x 9] intentionally omitted <==** കകൈപ്പറതിയയെങതിലലും നനോളതിതുവയരെ നമേൽ പ്രതതി യചെക്കു പ്രകൈനോരെമുള പണലും തതിരെതിയകൈനയെനോ നനനോടട്ടീസതിനസ് മേറുപടതി അയെക് നയെനോ യചെയതിടതില.” It is relevant to note that PW1 was not cross examined on the above aspect. According to the learned counsel PW1 was not seen cross examined by the learned counsel for the defence with reference to the non-service or the non-receipt of lawyer notice. The contention of the learned counsel in the aforesaid circumstances was that the court below ought to have found service of lawyer notice on the accused on 23.09.2006 as proper. But the court below erroneously found on the contrary based on an improper and incorrect appreciation of evidence and thereby the complaint was caused to be dismissed. According to him, the court below's improper appreciation of the evidence on record caused the impugned judgment to be passed and interference with the same in exercise of appellate jurisdiction is highly warranted to get the same, set right. 13. The respective counsel were heard. Crl.A.No.115 of 2009 :-11-: 14. It is clear from the oral as well as documentary evidence adduced by the complainant that lawyer notice dated 21.09.2006 was sent by registered post in the address of the accused and the same was received by him on 23.09.2006. The date, which is borne out from the seal impression in Ext.P5 is sufficient to establish that the registered lawyer notice had been served on the accused on 23.9.2006. The complainant as PW1 had also sworn before the court that the lawyer notice was served on the accused on 23.9.2006. In such circumstances, the finding of the court below that the date on which the lawyer notice was received by the accused was not established by the complainant either by examining the post man or by adducing documentary evidence is totally incorrect. When the date of service of lawyer notice is clearly established by the oral evidence of the complainant as PW1 and the documentary evidence adduced as Ext.P5 and in the absence of any challenge for the defence on the version of PW1 in the examination in chief that the notice was received by the Crl.A.No.115 of 2009 :-12-: accused on 23.9.2006, the court below undoubtedly is erred in arriving at such a finding. The finding is totally based on a misreading of evidence on record. 15. It is pertinent to note from the evidence in the case on hand that Ext.P1 cheque dated 15.09.2006 for a sum of `50,000/-, was presented for collection through Corporation Bank, Kannur. It was returned bounced on 16.09.2006 for the reason of insufficiency of funds as evidenced by Ext.P2 memo issued by the drawee bank, which is Union Bank of India, Kannur Branch. Thereafter, the complainant caused a statutory lawyer notice dated 21.09.2006 to be issued to the accused. Ext.P3 is the true copy of the said notice, marked in evidence. Ext.P4 is the postal receipt and it is evidenced therefrom that the lawyer notice was despatched in the address of the accused on 21.09.2006 itself. The accused has no case that the address in which it was despatched was an incorrect address. As provided in Clause (b) of proviso to Section 138 NI Act, a notice in writing has to be issued to the drawer of the Crl.A.No.115 of 2009 :-13-: cheque within 30 days from the date of receipt of the information by the payee bank regarding the return of the cheque as bounced. Going by the aforesaid evidence the complainant has successfully established that after receipt of Ext.P2 memo, stating the reason for dishonour of the cheque as insufficiency of funds, the complainant caused a statutory lawyer notice to be issued on the accused on 21.09.2006 i.e., strictly within one month's period as contemplated by Clause (b) of proviso to Section 138 N.I. Act. Clause (c) of the proviso to Section 138 provides that once the drawer of the cheque fails to make the payment of the amount due under the cheque to the payee within 15 days' time from the date of receipt of the notice, prosecution can be initiated. Ext.A5 is the acknowledgment card which bears the signature of the accused. It is evidenced from the oral evidence of the complainant as PW1 and Ext.A5 that the notice was received by the accused on 23.09.2006. The accused has no case that he had paid the money demanded by the complainant through the statutory lawyer notice within the 15 days' Crl.A.No.115 of 2009 :-14-: time as provided in Clause (c) of proviso to Section 138 N.I. Act. Therefore, a complaint to launch the prosecution has to be filed by the complainant within a period of one month from the date on which the cause of action originates under Clause (c) of the proviso to Section 138 as contemplated by Clause (b) of subsection (I) of Section 142 N.I. Act. In the case on hand, it is evidenced that the complaint to launch the prosecution was filed by the complainant within a period of one month, after the date on which the cause of action is originated. Therefore, there is satisfactory evidence before the court below to establish that all the statutory formalities for launching a successful prosecution under Section 142 N.I. Act for an offence punishable under Section 138 N.I. Act against the accused, has been complied with by the complainant. The court below is undoubtedly erred in finding that the complainant has not established the date of service of notice on the accused and thereby failed to comply with the statutory formalities. The finding that the accused is not guilty was arrived Crl.A.No.115 of 2009 :-15-: at by the court below, based on a totally perverse appreciation of evidence as aforesaid and consequently the complaint filed by the complainant to launch the prosecution against the accused was dismissed by the impugned judgment. The impugned judgment undoubtedly suffers from illegality, impropriety and incorrectness and is only liable to be reversed. 16. As already stated, point No.1 “whether the cheque was issued by the accused to discharge the debt or liability ?” was answered by the court below in the affirmative and it has become final for want of challenge raised by the accused. In view of the discussion in the preceding paragraphs, this Court has concluded that the complainant has successfully established the compliance of all the statutory formalities as contemplated by the provisions of the N.I. Act. Therefore, the finding of the court below on Point No.2 is liable to be reversed. In the said circumstances, the accused is liable to be found guilty for the offence under Section 138 N.I. Act. Crl.A.No.115 of 2009 :-16-: In the result, the appeal stands allowed. The accused is found guilty for the offence under Section 138 of the N.I Act and is sentenced to undergo imprisonment till rising of the court and to pay a compensation of Rs.1,00,000/- (Rupees one lakh only). The respondent shall appear before the court below on 4.8.2018 to serve the sentence. The compensation amount shall be deposited forthwith. On failure to pay the compensation amount, the respondent shall undergo imprisonment for a period of two months. On deposit of the compensation amount, the same shall be given to the complainant under sub-section (3) of Section 357 Cr.P.C. On failure of the accused to appear on 4.8.2018 to serve the sentence, the court below shall resort to steps to coerce his appearance for executing the sentence. Sd/- **Mary Joseph, Judge** **M** BS/ttb