K.Subbayyan vs Devarajan and State (Kerala)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934 Crl.L.P..No. 57 of 2013 () -------------------------AGAINST THE ORDER/JUDGMENT IN ST.103/2010 of J.M.F.C.-VII, TRIVANDRUM DATED 30-04-2012 PETITIONER/COMPLAINANT: ---------------------- K.SUBBAYYAN AGED 65 YEARS S/O.KYLASAPATHI,TC 39/964,KOTHUVAI STREET CHALAI,THIRUVANANTHAPURAM BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.DIPU JAMES SRI.K.P.UNNIKRISHNAN (ELOOR) RESPONDENTS/ACCUSED AND STATE: ------------------------------ 1. DEVARAJAN, AGED ABOUT 54 YEARS, S/O.RASALAM,KUNNIL VEEDU(364), MANNANTHALA THIRUVANANTHAPURAM - 695 015. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM R1 BY ADV. SRI.BIJU BALAKRISHNAN R2 BY PUBLIC PROSECUTOR SRI.T.RMPRASAD UNNI. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 57 of 2013** **---------------------------------------Dated this the 5[th] day of February, 2013** ## **O R D E R** The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate in his complaint, acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the accused borrowed an amount of `1 lakh from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 18.8.2006 and though the same was presented for encashment, it was dishonoured stating that funds are insufficient. It is the further case of the complainant that on receiving the dishonour memo from the Bank, he had caused to send a registered legal notice Ext.P3 dated 28.2.2007 CRL.L.P.NO. 57 of 2013 :-2-: to the accused intimating the dishonour of the said cheque and demanding to pay the amount covered by the cheque. But, according to the complainant, the accused, who received notice, has not repaid the cheque amount and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and produced Exts.P1 to P5. No evidence either oral or documentary was produced from the side of the defence. Based upon the evidence and materials and the contentions advanced, the learned Magistrate formulated three points for his consideration among with which the first point is that whether the complainant has complied with all the procedural requirements to initiate prosecution under Section 138 of the N.I.Act and the second point is whether the accused issued Ext.P1 cheque to the complainant for the discharge of a legally enforceable debt. Both the above points were found against the complainant and consequently, the accused is acquitted under CRL.L.P.NO. 57 of 2013 :-3-: Section 255(1) of the Cr.P.C. It is against the above finding and order of acquittal, the petitioner proposes to file an appeal for which leave of this Court is sought for. 3. The case of the complainant towards the compliance of the statutory requirement is that on receiving the dishonour memo i.e., Ext.P2, on 15.2.2007, he had caused to send Ext.P3 legal notice dated 28.2.2007 in the address of the accused. Ext.P4 is the postal receipt showing that Ext.P3 notice was sent to the accused. According to PW1/the complainant, Ext.P3 was received by the accused on 2.3.2007. It is the further case of the complainant that on the basis of Ext.P5, which is a letter addressed to the counsel for the complainant that on 26.3.2007, an enquiry was made regarding the registered letter with transaction No.3603 dated 28.2.2007 of the Vanchiyoor Junction Post Office and as per Ext.P5, it is found that a registered letter was delivered to the addressee at Nalanchira P.O. on 2.3.2007. The learned Magistrate, after consideration of those evidence including the CRL.L.P.NO. 57 of 2013 :-4-: evidence of PW2, held that it is not clear that the postal article referred to by the Manager of Customer Care Centre is actually relating to the postal article addressed to the accused in this case. The complainant's side did not produce the letter which was sent to the Customer Care Centre asking him for a reply. The trial court has also found that the Deputy Superintendent of Posts, who is the then Customer Care Manager who is examined as PW2, identified article number in Ext.P5 as 3603, but she could not produce any document to show that it is actually delivered to the accused. According to PW2, the retaining period of the records mentioned in the summons has been over and as such she could not produce those records. The trial court has further found that the Postman, who allegedly delivered the postal article, is not examined. The learned Magistrate has also found that PW2 could not produce any document to show that it was actually served and she is not a person, who has direct knowledge about the delivery of the postal articles. According to the defence, as stated by CRL.L.P.NO. 57 of 2013 **==> picture [21 x 9] intentionally omitted <==** the learned Magistrate, the postal article was not actually served on the accused and the postal receipts produced by the complainant are created for the purpose of the present case, with the help of Postal Department. On the basis of the above mentioned evidence and materials, the trail court concluded that there is no evidence to show that article No.3603 is the postal article containing Ext.P3 notice and the letter addressed by the Advocate to the Manager Customs Care Centre is not produced. So the learned Magistrate has found that it cannot be conclusively come to a finding that the postal article mentioned in Ext.P5 is the article containing in Ext.P3 notice and the same is actually served on the accused. According to me, the above finding of the learned Magistrate is absolutely correct. The service of a formal notice in terms of the proviso to Sections 138 is not an empty formality and it is incumbent upon the complainant to prove that such a demand is made on the drawer of the cheque in question. The evidence and materials produced from the side of the complainant, as CRL.L.P.NO. 57 of 2013 :-6-: correctly held by the learned Magistrate, are not sufficient to hold that the complainant has complied with the above statutory requirement. The above reasoning of the learned Magistrate, according to me, is v. supported by the decision in **Anil Raj Integrated Finance Company Ltd.** [2005(2) KLT 972]. Therefore, the submission of the learned counsel that there was no transaction between the complainant and the accused other than the present one, the absence of the contention of the accused that he is not residing in the address shown in Ext.P3 or Ext.P4 and the fact that the accused appeared before the trial court on the basis of the summons issued from the court in the very same address are not sufficient to prove that the notice is served on the accused and those submissions are unacceptable as the same will amount to surmises and conjectures. When the above reasoning given by the learned Magistrate appears to be legal and valid, in appeal, this Court cannot, on mere surmises and conjectures, interfere with the order of acquittal recorded by the trial court in favour of the CRL.L.P.NO. 57 of 2013 :-7-: accused. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to interfere with the finding of the court below and the order of acquittal. The non-compliance of the statutory requirement cuts the very root of the prosecution case and therefore, in the light of the above finding, I do not propose to enter into any further discussion and finding on the second point referred to above. In the result, there is no merit in the Criminal Leave Petition and accordingly, the same is dismissed. MBS/ **V.K.MOHANAN,** Judge CRL.L.P.NO. 57 of 2013 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.L.P.NO. 57 of 2013 :-9-: O R D E R Dated:2. ..2011