M. Ittyachan v. G. Ramaswamy and State of Kerala

CRL.A.No.2139 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942** ## **CRL.A.No.2139 OF 2005** **AGAINST THE JUDGMENT IN CC 31/2000 DATED 30-08-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA** ## **APPELLANT/COMPLAINANT:** **M.ITTYACHAN, S/O.POULO, MANAGING PARTNER, M/S. POWERTECH SYSTEMS, NEDUMBASSERY, RESIDING AT MELEDATH HOUSE, NEDUMABASSERY P.O.** **BY ADV. SRI.VINOD RAVINDRANATH** ## **RESPONDENTS/ACCUSED & STATE:** **1 G.RAMASWAMY C-3, THULASY BUDGET FLAT, NEAR N.G.O. QUARTERS, KAKKANAD, ERNAKULAM. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.N.SUKUMARAN R2 BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.2139 OF 2005 2 ## **JUDGMENT** ## **Dated this the 28th day of October 2020** The appellant is the complainant in C.C.No.31/2000 on the file of the Judicial First Class Magistrate Court I, Aluva. The above case is a prosecution initiated by the appellant against the 1[st] respondent and another alleging offence punishable under Section 138 of the Negotiable Instruments Act. (Hereinafter the parties are mentioned in accordance to their rank before the trial court). 2. The allegation is that the complainant is a partnership firm dealing in the business of manufacture and sale of power capacitors. First accused is the Managing Partner and the second accused is the partner of Swami Agencies, a business concern dealing in retail sale of electrical items. Both the complainant and the accused had business transaction. In connection with the purchase of the capacitors by the accused from the complainant, some amount was due to the complainant. For the discharge of this amount, accused signed and issued two cheques of Dhanalakshmi Bank Ltd, Palarivattom Branch for Rs.25,000/each. Complainant presented the cheques for collection. But CRL.A.No.2139 OF 2005 3 both of them were dishonoured due to want of funds in the account of the accused. Thereafter, a lawyer notice was issued to the accused. But the notice was returned unclaimed. So far the accused have not repaid the amount. Hence this complaint. 3. To substantiate the case, the prosecution examined two witnesses and marked Exts.P1 to P11. The first accused was examined as DW1. Exts.D1 to D10 are the defence documents. 4. After going through the evidence and the documents, the trial court convicted and sentenced the accused under Section 138 of the Negotiable Instruments Act. The accused challenged the conviction and sentence before the Sessions Court. The Sessions Court was pleased to set aside the conviction and sentence and remanded the case to the lower court to consider afresh the question of validity of the notice issued to the accused and to prove that the complainant firm is a registered partnership firm. 5. After remand, the further evidence was adduced. Thereafter, the learned Magistrate concluded that the accused is not guilty under Section 138 of the Negotiable Instruments Act for the short point that there is want of proper notice to the correct address of the accused. Aggrieved by the above CRL.A.No.2139 OF 2005 4 ## acquittal order, this Criminal Appeal is filed. 6. Heard the learned counsel for the complainant and the accused. Heard the learned Public Prosecutor also. 7. The learned counsel for the complainant vehementally argued that there is presumption in favour of the complainant to the effect that the notice is served, in the light of Section 27 of the General Clauses Act. The counsel also relied the judgment of the Apex Court in **C.C.Alavi Haji v. Palapetty Muhammed and Ors. [(2007) 6 SCC 555]** and the decision of this Court in **Monichan v. State of Kerala (2020(2) KLT 784).** The counsel submitted that, if the accused has got an intention to pay the amount and he was not able to pay the amount because the notice was not received by him, the accused can very well pay the amount once he appeared before the court below. He relied the judgment of **Monichan** 's (supra) case for that purpose. The counsel submitted that it is a case in which the complainant issued notice to the last known address. According to him, the accused was functioning his business in that premises. The evidence of PW2 will corroborate that the intimation was given. Therefore, the lower court erred in acquitting the accused saying that there is no proper notice. This was the submission CRL.A.No.2139 OF 2005 5 of the complainant. 8. The counsel for the accused submitted that the trial court after considering the entire facts and circumstances of the case concluded that there is no proper notice. The learned counsel also relied the judgment in **Babu T.R v. Jayapalan and another (2017(4) KHC 290)** . 9. (i) The point for consideration in this appeal is whether the accused committed the offence under Section 138 of the Negotiable Instruments Act. (ii) Whether there is any proper notice issued by the complainant to the accused demanding the amount in accordance to the provisions of the Negotiable Instruments Act. 10. Admittedly, the notice was issued to an address “AlSamith & Company, Providence Road, Near Vidyanikethan College, Kochi”. The address shown in the notice as “M.Ramaswamy, Managing Partner, Swamy Agencies, now residing at Al-Samith & Co., Providence Road, Near Vidyanikethan College, Kochi”. The notice is returned 'unclaimed'. PW2, the postman deposed that an intimation was given at Al-Samith & Company. But he is not in a position to say that the intimation was given to the accused in this case. According to him, an intimation was given in the address shown CRL.A.No.2139 OF 2005 6 in the cover and thereafter it was returned with an endorsement 'unclaimed'. In such circumstances, whether there is proper notice is the question to be decided. 11. I can understand suppose a notice is issued to the last known address and thereafter the complainant deposed before the court that this is the last known address of the accused and therefore the notice was issued in that last known address. In this case, the complainant has no such case while he was examined before the court. The counsel argued that this is the last known address of the accused. The accused is not even get an opportunity to cross examine on the point that this is the last known address in which the notice is sent because there is no such evidence from the complainant. In such circumstances, the trial court concluded that there is no proper notice. The finding of the trial court is extracted hereunder: “7. Then comes to the second point. That is the correctness of the Advocate Notice issued to the Ist accused. Complainant issued notice to the Ist accused after the dichonour of the cheque. But according to the accused, no notice was issued to him in the correct address. Whereas, notice was issued in the following address - M. Ramaswamy, Managing Partner, Swamy Agencies, Now at Al-Samith & Company, Providence Road, Near Vidyanikethan College, Kochi. This notice was seen returned unclaimed. Now the question is whether Ext.P7 notice issued to the 1[st] accused was in the correct known address. To prove that the postman had made attempt to serve the notice to the addressee, PW 2, CRL.A.No.2139 OF 2005 7 the postman himself has been examined. According to him, he is the postman in Ernakulam North Post Office in 1998. According to him, he himself made attempt to serve Ext.P7 notice to the addressee. The addressee in Ext.P7 comes within his beat. As per the endorsement seen in Ext.P7 cover, it is seen that the intimation was given about that notice, since the addressee was not found out. But inspite of the intimation, the addressee did not receive the notice. In cross examination, he stated that he has no direct knowledge or acquaintance with the addressee in Ext.P7 notice, the accused. He doesn't know who is the proprietor or the Managing Director of Al-Samith & Company. Same is the case about the person to whom intimation about Ext.P7 notice was given. So from his version what is revealed is that intimation about Ext.P7 notice is said to be given to some responsible persons in Al-Samith & Company. But he is not aware of the person to whom such intimation was given. He has no personal knowledge about the addressee also. Now the counsel for the complainant argued that there is no reason to disbelieve the version of postman. The act done by him in his official capacity and duty is presumed to be done properly and correctly. So the fact that the intimation of Ext.P7 notice was given to the 1[st] accused is only to upheld. However, the learned counsel for the 1[st] accused raised strong objection to the above said argument. According to him, the 1[st] accused is not in any way connected to A1-Samith and Company. He is neither the Managing Partner or partner of that firm. Whereas, he admitted that he was associated with Swami Agencies. According to the counsel, Ext.P7 notice was given in a fictitious address. This is not correct or last known address of the accused. To prove that the accused was residing in some where at relevant time, he has produced documents. His home address was known to the complainant also. But the complainant had not issued any notice in the address of the 1[st] accused in Swami's Agencies or in the house address of the 1[st] accused. Whereas, notice was issued in a new address which the 1[st] accused did not admit to be correct. Accused had taken steps to summon the Manager of Al-Samith and company. According the 1[st] accused, such a company was not in existence, because the summons issued in that address was returned unserved. To prove this fact, Ext.D5 to D10 are produced. Since the 1[st] accused has not admitted his address in Ext.P7 notice, the burden is on the complainant to prove that the address of the 1[st] accused shown in Ext.P7 notice is the last known correct address. In the light of the evidence adduced by the accused, in this case, the mere statement of the postman that he had given intimation of Ext.P7 notice to somebody in A1-Samith CRL.A.No.2139 OF 2005 8 Company is found to be not sufficient. Complainant has not proved that the 1[st] accused had anyway connected or associated with this Al-Samith & Company. Only if it is proved that the 1[st] accused is associated with Al-Samith & Company or available in that address, or admitted by the 1[st] accused that it was the correct address, the endorsement of the postman that the intimation of the notice was given to the addressee or somebody related to him can be accepted. Here, it is not proved or admitted by the 1[st] accused that the address stated in Ext.P7 notice is correct or the last known address. Admittedly, the complainant had not issued any notice to the 1[st] accused in the last known correct address. The address stated in Ext.P7 notice is only known to the complainant. If it is not proved that it was the last known correct address of the accused, the mere endorsement of the postman that intimation of Ext.P7 notice was given to the addressee is not sufficient enough to constitute a valid notice. Therefore, in this case it is found that notice was not issued by the complainant to the accused in the last known correct address. The address shown in Ext.P7 is found to be not the last known correct address of the 1[st] accused. If that be the position, in this case, there is no valid notice to the 1[st] accused after the dsihonour of the cheque. A notice is a condition precedent to file the complaint U/s.138 of N.I Act. Since such a notice was not properly issued in this case, the complaint is not maintainable. Admittedly, the second accused is not a signatory in the cheque. It is not proved that she is a partner in Swami Agencies. Her involvement in this transaction is also not proved. So she is not 1iable in this matter. In short, it is found that for the sole reason of want of a proper notice to the correct address of the accused, this complaint goes. Point is found accordingly.” 12. I see no reason to interfere with the above finding of fact by the trial court. The trial court considered the point in detail. The trial court found that the notice is not sent to the proper address. As I stated earlier, there is absolutely no evidence from the side of the complainant that the notice is sent to the last known address of the accused. The learned counsel for the CRL.A.No.2139 OF 2005 9 accused also relied the judgment of the **Monichan** 's case (supra) to contend that the notice is inconsequential if the liability is disputed by the accused. I think, that is a case in which the learned judge made an observation in the facts and circumstances of that case. According to me that principle is not applicable in the facts and circumstances of this case. In such circumstances, I am not in a position to accept the contention of the appellant. Therefore, the Criminal Appeal fails. Hence, this Criminal Appeal is dismissed, confirming the judgment dated 30.8.2005 in C.C.No.31/2000 of the Judicial First Class Magistrate Court I, Aluva. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** ## **ab**