K.N. Joshi v. K.M. Abdul Shebi and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933 CRA.No. 1388 of 2003 (A) -----------------------CC.829/1998 of JFCM COURT, PERUMBAVOOR APPELLANT/COMPLAINANT: ------------ K.N.JOSHY, S/O.NARAYANAN, ONAMPILLY, OKKAL P.O., PERUMBAVOOR. BY ADV. SRI.G.RAJAGOPAL RESPONDENT/ACCUSED: -------------- 1. K.M.ABDUL SHEBI, PROPRIETOR, M/S.ATHIRA WOODS, SHAREENA MANZIL, RAYAMANGALAM P.O., PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY SRI.PAUL K.VARGHESE R2 BY P.P.SMT.V.H.JASMINE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** ## **N.K.BALAKRISHNAN, J.** **---------------------------------------------------Crl.A.No.1388 of 2003 ---------------------------------------------------Dated this the 18[th] day of January, 2012** ## **Judgmet** The complainant is in appeal. The complaint was filed under Section 138 of the Negotiable Instruments Act. The accused therein was acquitted by the learned Magistrate under Section 255(1) Cr.P.C. mainly on the ground that the statutory notice sent by the complainant was not served on him. The notice was returned with an endorsement " door locked". 2. The learned counsel for the complainant submits that though the findings on other points were entered by the learned Magistrate in favour of the complainant, based on a wrong finding regarding the notice sent the accused was acquitted. This appeal is filed challenging the verdict of acquittal. 3. It is argued by the learned counsel that even the evidence given by DW.2, the post man would show that Ext.P4 notice was taken to the house of the accused in the address Crl.A.1388/03 2 shown therein. There was no case for the accused that he was not residing in the address shown in Ext.P4 notice. Even if it is accepted that the accused had left the house to some other place for a few months that is no reason to say that the statutory notice was not sent as required under the Proviso to Section 138 of N.I. Act. 4. The suggestion put to PW.1 by the accused was to the effect that from January, 98 to December, 1998 the accused and his family members were not in station. Ext.P1 cheque is dated 06.02.1998. The cheque was valid for 6 months. Therefore the accused who issued the cheque was expected to know that the cheque was likely to be presented before the bank for encashment and if any notice is to be sent, that notice had to be sent in his address which was known to the complainant at the time when the transaction was entered into. There is no case for the accused that he had informed the complainant of his shifting of the residence during the period as suggested by him to PW1. What is the presumption available as to the due service of notice, when the notice was sent by registered post, is to be considered relying on the decisions in **Bhaskaran V. Sankaran Vaidhyan Balan** reported in 1999(3) KLT 440 and **D. Vinod** Crl.A.1388/03 3 **Sivappa v. Nanda Belliappa** reported in 2006(3) KLT 94. These decisions were affirmed by the Apex Court in **Alavi Haji vs. Mohammed** reported in 2007(3) KLT 77. There it was held: “The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In **K. Bhaskaran V. Sankaran Vaidhyan Blan** and Anr., the said expression came up for interpretation. Considering the question with particular reference to scheme of S.138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the said notice. Giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause ( c) of the proviso. Emphasizing that the provisions contained in S.138 of the Act are required to be construed liberally, it was observed thus: If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running, no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of S.138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell's interpretation of Statues the learned author has emphasised that “provisions relating to giving of notice should often receive liberal interpretation.” (vide page 99 of the 12[th] Edn.). The context envisaged in S.138 of the Act invites a liberal interpretation for the person who has the Crl.A.1388/03 4 statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause ( b) of the proviso to S.138 of the Act show that payee has the statutory obligation to - make a demand - by giving notice. The thrust in the clause is one the need to - make a demand-It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. 5. The fact that the notice was taken by the postman to the residence of the accused for effecting service is borne out from the evidence of DW1 - the post man, and the endorsement - Ext.P4(a) made by him on Ext.P4. 6. The learned counsel for the first respondent/accused would submit that there was no due service of notice and that no intimation was given to anybody so as to enable the addressee to receive the notice. There is no case for the accused that any adult member of the family was in that house when the notice was taken to the postman to serve it on the addressee. Therefore, the question of giving any intimation to any other person is out of question. Hence the decision in **Padmanabhan v. Vasudevan Namboodiri** (2010(3) KLT 216) has no application at all. That apart, the learned counsel for the Crl.A.1388/03 5 appellant/complainant would submit that in the statement given by the accused under Section 313 Cr.P.C. his case was that no notice was sent to his correct address at all. That is contradictory to the stand taken by him that he was only temporarily absent from that house. A dexterous device was devised by the accused by putting forth such a plea, the complainant contends. Whatever that be, there is acceptable evidence to show that notice was sent by registered post in the correct address of the accused. Accused has no case that he had intimated the complainant of his shifting of residence, whether it be for a temporary period or not. 7. It is also pertinent to note that the accused did not offer to pay the amount immediately on service of summons on him or when he appeared before the court. Even during the trial stage, he did not offer to pay the amount. Therefore, it is not a case where he had to bear the criminal liability for non-receipt of the notice alone. It was only his persistent disinclination to pay the amount, that invited the penal consequence. 8. It is also contended by the learned counsel for the appellant that besides sending notice by registered post, notice was sent by certificate of posting also. Anyway, since notice was Crl.A.1388/03 6 sent by registered post in the correct address of the accused and as it was returned with the endorsement 'door locked', a presumption of 'deemed service' must be drawn, in which case the contention that there was non-compliance of proviso (b) to Section 138 of the N.I.Act cannot be sustained. Hence, the acquittal of the accused on that ground is liable to be set aside. 9. The learned counsel for the appellant would submit that evidence was adduced by the complainant to prove that the accused had borrowed Rs.20,000/- from him and it was to discharge that debt/liability Ext.P1 cheque was issued. When it was presented for encashment it was dishonoured due to insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent which must be deemed to have been served as held in the preceding paragraph. Admittedly, the accused did not pay the amount even after the filing of the complaint. The presumption under Section 139 of the N.I.Act was not rebutted by the accused. As such the conviction under Section 138 of the N.I.Act must necessarily follow. Therefore, in reversal of the order of acquittal the first respondent/accused is found guilty of the offence under Section 138 of the Act and he is convicted thereunder. He is sentenced to undergo imprisonment Crl.A.1388/03 7 till the rising of the court and to pay Rs.30,000/- as compensation and in default the accused will undergo S.I. for one month. The first respondent/accused is granted time till 17.3.2012 to pay the amount. He will surrender before the learned Magistrate on 17[th] March, 2012 to undergo imprisonment till the rising of the court and to pay the amount of compensation as ordered above. The Crl.Appeal is allowed as above. ## **N.K.BALAKRISHNAN, JUDGE.** smvd/srd Crl.A.1388/03 8