E.O. Joseph v State of Kerala and C.J. Joy Thekke Chakkamkéri

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940** **CRL.A.No. 1778 of 2004** **AGAINST THE JUDGMENT IN CRA NO.364/2002 of THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA DATED 02-06-2004** **AGAINST THE JUDGMENT DATED 30.11.2002 IN CC NO.1225 OF 1998 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA** ## **APPELLANT/RESPONDENT/COMPLAINANT:** **E.O.JOSEPH, AGED 58 YEARS, KELAMVELI VEEDU, K.R.PURAM P.O., CHERTHALA.** **BY ADVS.** **SRI.GRASHIOUS KURIAKOSE (SR.) SRI.B.PRAMOD** ## **RESPONDENTS/APPELLANT/STATE & ACCUSED:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 C.J. JOY THEKKE CHAKKAMKERI K.R. PURAM P.O., CHERTHALA.** **R1 BY SRI.D. CHANDRASENAN, SR.PUBLIC PROSECUTOR R2 BY ADVS. SMT.MINI.V.A. SMT.SABINA JAYAN SRI.R.RAJASEKHARAN PILLAI SRI.R.SREEDHARAN NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 1778 of 2004 2** ## **JUDGMENT** The appeal on hand is directed against the judgment dated 02.06.2004 of Court of Sessions, Alappuzha (for short 'the court below') in Crl.A.No.364 of 2002. The appellant is the complainant. The parties to this appeal are referred to hereinafter as the complainant and the accused for convenient reference. 2. A complaint was filed to launch a prosecution under Section 142 of the Negotiable Instruments Act, 1881 (for short 'NI Act') by the complainant before the Judicial First Class Magistrate Court-I, Cherthala, alleging commission by the accused of an offence punishable under Section 138 NI Act. Sworn statement of the complainant was recorded and the complaint was taken on file as C.C. No.1225 of 1998. Process was issued to the accused and on his appearance, the particulars of the offence were read over to him, to which he pleaded not guilty. Accordingly, trial was held. 3. On the side of complainant, he himself mounted the box to depose as PW1 and a witness was examined as PW2. Documentary evidence was also adduced as Exts. P1 to P6. The ## **CRL.A.No. 1778 of 2004 3** plea of the accused was total denial of execution of the cheque. On the side of the defence, a witness was examined as DW1. On closure of the evidence, after hearing the respective counsel representing the complainant and the accused, the Judicial First Class Magistrate-I, Cherthala, found the accused guilty of the offence punishable under Section 138 NI Act and accordingly convicted and sentenced him to undergo simple imprisonment for one month and pay compensation of Rs.15,000/- to the complainant under Section 357 (3) Cr.P.C. Aggrieved thereby, the accused has approached the Court of Sessions, Alappuzha in Crl.A.No.364 of 2002. The appellate court allowed the appeal and reversed the finding of guilt of the accused and consequently the order of conviction and sentence. Aggrieved thereby, the complainant has approached this Court in the captioned appeal. 4. Sri.B.Pramod and Smt.Sabina Jayan, the learned counsel respectively advanced arguments on behalf of the complainant and the accused. 5. It is contended by Sri.B.Pramod, the learned counsel for the complainant that, the appellate court went wrong in appreciating the evidence on record to arrive at a finding that, notice as mandated under Clause (b) of proviso to Section 138 NI ## **CRL.A.No. 1778 of 2004 4** Act was not served on the accused. According to him, Ext.P6, the certified copy of the account extract shows the house name of the accused as 'Chakkamkeri'. It is further contended by the learned counsel that, notice was despatched in the residential address as found in the postal acknowledgement card, whereas, the demand notice was sent in the correct address. According to him, when the demand notice was sent in the correct address, a difference though exist in the address furnished in the acknowledgement card has no relevance at all. The further contention raised by the learned counsel was that, in the acknowledgement card one Ms. Ani Joseph, was found to have affixed her signature. According to him, Ms.Ani Joseph was none other than the sister of the accused and therefore there is no merit in the contention of the accused that, notice was not served upon him. PW2, postman examined before the trial court had also deposed that, registered notice addressed to a particular addressee could only be given to any person other than the addressee only on authorisation given by the latter. According to the learned counsel, the Appellate court had overlooked the evidence given by PW2, the postman, to arrive at a conclusion that, notice was not served on the accused. The counsel has also taken another contention that, the ## **CRL.A.No. 1778 of 2004 5** presumption under Section 114 of the Indian Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 would come to the rescue of the complainant contextually and the Appellate court failed to advert to those aspects while passing the judgment under challenge. The learned counsel has also relied on _**C.C.Alavi**_ ## _**Haji v. Palapetty Muhammed and Another [2007 (3) KLT 77**_ _**(SC)]**_ to substantiate his contention that in view of Section 27 of the General Clauses Act, 1897, it is not necessary to aver in the complaint that service of notice was evaded by the accused or the accused had a role to play in the return of the notice unserved. Raising contentions of the nature, the learned counsel canvassed for a reversal of the judgment under challenge and restoration of the complaint back to file. 6. Per contra, Smt.Sabina Jayan, the learned counsel on behalf of the accused has submitted that, the appellate court has correctly appreciated the evidence and found the accused as not guilty of the offence under Section 138 NI Act. According to her, the address found in the acknowledgement card, marked in evidence as Ext.P5 was wrong, as it bears the house name 'Chakkamkeri' instead of 'Thekke Chakkamkeri'. According to her, when the address shown in the notice is an incorrect one, neither ## **CRL.A.No. 1778 of 2004 6** the presumption under Section 114 of Indian Evidence Act, 1872 nor one under Section 27 of the General Clauses Act, 1897 would come for the rescue of the complainant in the matter of establishing service of notice and the Appellate court has rightly found against him. According to her, interference of any nature is totally unwarranted. 7. Bearing the rival contentions in mind, this Court has ventured to analyse the evidence available on record to find basis for the contentions raised. As already stated, the evidence from the side of the complainant takes in his own oral evidence as PW1 and that of the postman, who was instrumental in the alleged service of notice as PW2. The documentary evidence includes the cheque involved in the case on hand marked as Ext.P1, the memo issued from the bank as Ext.P2, the office copy of the demand notice as Ext.P3, postal receipt as Ext.P4, acknowledgement card as Ext.P5 and certified copy of the extract of account particulars as Ext.P6. 9. Want of service of notice was taken as a plea by the accused before the trial court itself. The reason stated by the accused was that, the house name shown in the address in which Ext.P3 notice was sent, was incorrect. According to him, the ## **CRL.A.No. 1778 of 2004 7** actual house name of the accused is 'Thekke Chakkamkeri', whereas, in the address furnished while issuing notice, the house name shown was 'Chakkamkeri'. According to the learned counsel, Ext.P5 acknowledgement card, also bears the address with the house name 'Chakkamkeri' and it was found received by one Ms.Ani Joseph. According to the learned counsel, the accused has no house name as 'Chakkamkeri' and the notice sent in the address found in Ext.P3, was not received by him. According to him, Ms.Anie Joseph, who allegedly received the notice was not related to him. 8. This court is declined to rely on the dictum in _**C.C.Alavi Haji**_ 's case supra in the case on hand, for want of relevance in the context. Undoubtedly, the notice was issued in an address with a house name different from that of the accused. The presumption under Section 27 General Clauses Act would be applicable to take a view that notice was served on the addressee only when it was established as sent in his correct address by registered post with acknowledgement due. 10. It is the burden of the complainant to establish that notice as contemplated under Clause (b) of proviso to Section 138 NI Act has been served on the accused. It is true that, a plea ## **CRL.A.No. 1778 of 2004 8** regarding service of notice was taken by complainant in the complaint. But, a perusal of Ext.P5, the acknowledgement card discloses that the house name incorporated in the address furnished therein was not that of the accused. Moreover, the notice allegedly issued by the complainant was actually received by one Ms. Ani Joseph and not by the accused. The postman examined in the case as PW2, has stated during examination in chief that, registered letters in the ordinary course be delivered only to the addressee and in his absence to any other person on proper authorisation being issued by the addressee in his/her favour. But during cross examination PW2 has stated that, he does not know whether Ms.Ani Joseph has been authorised by the accused to receive the notice on behalf of him. Therefore, in the case on hand, this Court has no hesitation to arrive at a conclusion that the complainant has thoroughly failed to establish service of notice on accused as contemplated under Clause (b) of Proviso to Section 138 NI Act. Only when the address furnished in the notice issued is established as correct, the presumption under Section 114 of the Indian Evidence Act, 1872 or under Section 27 of the General Clauses Act, 1897 will come for the rescue of the complainant in the matter of service of notice. In ## **CRL.A.No. 1778 of 2004 9** the case on hand, evidence is totally lacking to show that, the notice as mandated by Clause (b) of proviso to Section 138 NI Act was served on the accused. Therefore, the complaint launched by the complainant under Section 142 NI Act to charge the accused for the offence under Section 138 NI Act will not sustain. The court below has correctly arrived at such a finding while passing the judgment under challenge and acquitted the accused. Interference of any nature is totally uncalled for. In the result, the appeal fails and is dismissed. ## **Sd/-** **MARY JOSEPH** NAB **JUDGE**