L. Krishnakumar Champazhhinji Vila Veedu v. N.S.K. Anil Kumar; State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** ## **CRL.A.No. 1944 of 2006** **AGAINST THE ORDER/JUDGMENT IN CC 441/2004 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES), THIRUVANANTHAPURAM DATED 24-062006** ## **APPELLANT/S:** **L.KRISHNAKUMAR CHAMPAZHINJI VILA VEEDU, KANJIRAMKULAM P.O.,, THIRUVANANTHAPURAM.** **BY ADV. SRI.BLAZE K.JOSE** ## **RESPONDENT/S:** |**1**|**N.S.K.ANIL KUMAR**| |---|---| ||**SANKARA BHAVAN, KANJIRAMKULAM P.O.,,**| ||**THIRUVANANTHAPURAM.**| |**2**|**STATE OF KERALA REP. BY**| ||**PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,**| ||**ERNAKULAM.**| ||**BY ADVS.**| ||**SMT.K.P.SANTHI**| ||**SRI.S.M.PREM**| ## **OTHER PRESENT:** ## **SRI. E C BINEESH-PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL.A.No. 1944 of 2006** -2- ## **JUDGMENT** The appellant is the complainant in C.C. No. 441 of 2004 on the files of the court below. The appellant filed a complaint against the first respondent herein before the court below alleging offence under Section 138 of the N.I.Act. The court below, after recording the evidence, acquitted the accused for the offence under Section 138 of the N.I.Act under Section 255 (1) Cr.P.C., against which this appeal has been filed after obtaining Special Leave from this Court. ## 2. Heard. 3. The only reason which led to the acquittal of the accused was that the demand notice was not served ## **CRL.A.No. 1944 of 2006** -3- on the accused. Ext. P5 is the demand notice. Ext. P5 contained the following endorsements. “Locked” “Intimated” and “Addressee left, present address not known”. 4. The learned counsel for the accused has contended that since the notice was not served on the accused, the accused cannot be convicted and sentenced for the offence under Section 138 of the N.I.Act. The court below found that since the notice was returned with the endorsement “addressee left”, there was no service of notice on the accused. Holding so, the court below acquitted the accused. 5. The question to be considered is as to whether the judgment and order of acquittal passed by the court ## **CRL.A.No. 1944 of 2006** -4- below can be justified or not. At this juncture, it is relevant to refer to some of the decisions of the Hon'ble Apex Court in this regard. 6. The three Judge Bench of the Apex Court in Alavi Haji v. Muhammed [2007 (3) KLT 77 (SC)] held in paragraph 17 thus: - “Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under S. 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of ## **CRL.A.No. 1944 of 2006** -5- the summons from the Court along with the copy of the complaint under S. 138 of the Act, cannot obviously contend that there was no proper service of notice as required under S. 138, by ignoring statutory presumption to the contrary under S. 27 of the G.C. Act and S. 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation”. 7. The Apex Court in paragraph 15 of the decision in N.Parameswaran Unni v. G. Kannan and Another [(2017) 5 SCC 737] held thus:- “This Court in a catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station” due service has to be presumed.” In this case, the evidence of PW1 would 8. ## **CRL.A.No. 1944 of 2006** -6- show that the accused was residing in the same address. The address in the complaint was also the same as that of the address shown in the demand notice. The accused received summons, appeared before the court and contested the matter. After the appearance of the accused before the trial court, the accused did not make any submission to the trial court that he did not receive the notice and that he was prepared to pay the cheque amount within 15 days. That apart, it is clear from one of the endorsements found on Ext. P5 that the intimation was given to the accused. In view of the above reasons, the finding by the court below that there was no service of notice on the accused cannot be sustained. Therefore, the acquittal of the accused on that ground cannot be sustained. ## **CRL.A.No. 1944 of 2006** -7- 9. I have gone through the evidence of PW1. PW1 clearly stated that the accused borrowed an amount of Rs. 4,00,000/- from PW1 and towards the discharge of the said liability, the accused issued Ext. P1 cheque in favour of the complainant. The evidence of PW1 would clearly show that the accused and PW1 were neighbours having good contacts with each other. The accused had a contention that the accused had borrowed an amount of Rs. 50,000/- from the complainant and at the time of borrowing the said amount, the accused had entrusted a blank signed cheque with the complainant and the said cheque had been misutilized by the complainant to file the present complaint. However, apart from the said contention, there is absolutely no material before the ## **CRL.A.No. 1944 of 2006** -8- court to indicate that the above said contention of the accused is probable. The evidence of PW1 would clearly show that PW1 and his wife are government employees. There was no contention that PW1 had no capacity to pay the amount covered by Ext. P1 cheque. Having gone through the relevant inputs, I am of the view that the evidence of PW1 that the accused executed Ext. P1 cheque as contemplated under Section 138 of the N.I. Act can be safely believed. Therefore, the presumption under Section 139 of the N.I.Act is available in favour of the complainant. No material is available before the court to rebut the said presumption. In the said circumstances, it has to be held that the complainant could establish that the accused committed the offence under Section 138 of the N.I.Act. For the said reason, the judgment and order of ## **CRL.A.No. 1944 of 2006** -9- the court below acquitting the accused cannot be sustained and consequently I set aside the same and convict the accused under Section 138 of the N.I.Act. The learned counsel for the accused, who is the first respondent, has submitted that if this Court is inclined to award minimum sentence, there is no need to hear the accused on the question of sentence. 10. Considering the facts and circumstances of the case, including the amount covered by Ext. P1cheque and also the nature of transaction, I am of the view that the accused can be sentenced to a fine of Rs. 4,00,000/(Rupees four lakhs only) with a default clause for simple imprisonment for two months, to meet the ends of justice. It is ordered accordingly. If the fine is realised, the entire ## **CRL.A.No. 1944 of 2006** -10- amount shall be given to the complainant as compensation under Section 357 (1) (b) Cr.P.C. In the result, this Appeal stands allowed. The accused is granted six months to pay the fine as requested by the learned counsel for the accused. **Sd/-B. SUDHEENDRA KUMAR, JUDGE** . ani/ /true copy/ P.S. to Judge