M. J. Sabu v. Jossy Varghese and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 CRL.A.No. 1973 of 2003() -----------------------AGAINST THE JUDGEMENT/ORDER IN CRLP.510/2003 Dated 30/10/2003 CC.146/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... ## APPELLANT/COMPLAINANT: ------------------------------------------ M.J. SABU, MUTTINPURATH VEEDU, NEDUMKANDOM KARA, KALKOONTHAL VILLAGE UDUMBANCHOLA TALUK. BY ADV. SRI.JOICE GEORGE ## RESPONDENTS/ACCUSED: ------------------------------------ 1. JOSSY VARGHESE, KUNNUMPURATH VEEDU 8TH MILE KARA, ANAKKARA VILLAGE, UDUMBANCHOLD TALUK, IDUKKI DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA - SRI.B.RAMAN PILLAI FOR R1 - SRI.R.ANIL FOR R1 - SRI.ANIL K.MOHAMMED FOR R1 SRI.DELVIN JACOB MATHEWS FOR R1 SRI.SUJESH MENON V.B. FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON 03/01/2011 DELIVERED THE FOLLOWING: ## **M.L. JOSEPH FRANCIS, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1973 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of January, 2010 ## **JUDGMENT** This appeal is filed by the complainant in C.C..No. 146 of 2000 on the file of the Judicial First Class Magistrate Court, Nedumkandom. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. The case of the appellant/complainant is as follows. The first respondent/accused borrowed an amount of Rs.1,50,000/- from the appellant and in discharge of the said liability, issued a cheque dt.28.11.1999 drawn on Idukki District Co-operative Bank, Kumili branch for an amount of Rs.1,50,000/- The appellant presented that cheque for collection on 28.11.1999 and the same was dishonoured on 31.12.1999 due to insufficiency of funds in the account of the accused. The Crl.A. No. 1973 of 2003 2 appellant sent a registered lawyer notice to the accused on 6.1.2000 intimating the dishonour of the cheque and demanding back the amount, which was received by the accused on 30.1.2000. Even after receipt of the notice, the accused did not repay any amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. No evidence was adduced from the defence side. The learned Magistrate, on considering the evidence, found that Ext.P1 cheque was issued by the accused in favour of the complainant in discharge of a legally enforceable debt of Rs.1,50,000/- and that the cheque was dishonourned due to insufficiency of funds in the account of the accused. But the was acquitted under Section 255(1) Cr.P.C. on the ground that the complainant has failed to prove that notice was served on the accused. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 1973 of 2003 3 5. The learned counsel for the appellant raised the following contentions at the time of argument. The learned counsel submitted that the learned Magistrate went wrong in holding that there was no proper notice as contemplated under the N.I. Act as the signature in the cheque and the acknowledgment card differs. The learned counsel further stated that the learned Magistrate ought to have seen that Ext.P4 postal receipt and Ext.P5 acknowledgment card are issued by the postal authorities and the presumption under Section 139 of the Act is in favour of the appellant. The accused did not adduce any evidence to rebut the said presumption. 6. The learned counsel for the appellant submitted that the learned Magistrate went wrong in acquitting the accused after having been found that the accused had issued the cheque in favour of the appellant for discharge of the liability of an amount of Rs.1,50,000/The learned Magistrate ought to have found that the difference in the signatures in the cheque and the acknowledgment card is not fatal to the case of the complainant. The learned Magistrate ought to have Crl.A. No. 1973 of 2003 4 considered the possibility of putting a different signature on the acknowledgment card by a crooked man like the accused, who was trying to evade payment of the amount to the complainant. 7. The learned Magistrate ought to have found that the Postman, who is suppose to know the accused in person, delivered the notice to him and got the acknowledgment card signed and therefore there is no question of disbelieving the genuineness of Ext.P5 especially when Ext.P5 postal receipt was produced to corroborate the genuineness of Ext.P5 acknowledgment. The case of the first respondent is that he issued the cheque in question to the Goodwill Enterprises, of which the appellant is a partner and the cheque was entrusted to the firm at the time of bidding a chitty. For substantiating the defence case, no evidence was adduced by the accused. 8. The complainant was examined as PW1. He deposed that the accused borrowed an amount of Rs.1,50,000/- from him and in discharge of that liability, the accused executed Ext.P1 cheque on 28.11.1999. When PW1 presented that cheque for encashment, it was 5 Crl.A. No. 1973 of 2003 dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo. PW1 sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. Ext.P3 is the copy of the lawyer notice, Ext.P4 is the postal receipt and Ext.P5 is the postal acknowledgment signed by the accused. PW1 deposed that inspite of the lawyer notice the accused did not give back any amount. The accused has no case that the address shown in the lawyer notice and the acknowledgment is not correct. The accused has not gone to the witness box to dispute the signature in Ext.P5 postal acknowledgment. The accused has no case that there was sufficient amount in his account to honour Ext.P1 cheque. 9. In the decision reported in **Indo Automobiles v. Jai Durga Enterprises** (2008 (3) KLT 480 (SC) it was held that: “Once notice has been sent by registered post with acknowledgment due in correct address, it must be presumed that service has been made effective.” 6 ## Crl.A. No. 1973 of 2003 10. In the decision reported in **Alavi Haji v. Muhammed** (2007 (3) KLT 77 (SC) it was held that: “ A person who does not pay within 15 days of receipt of summons from court along with copy of complaint, 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 General Clauses Act and S.114 of Evidence Act.” 11. Since lawyer notice was sent in the correct address, it has to be presumed that there was sufficient notice to the accused. Since the complainant has proved all the essential elements of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the Act he is convicted for that offence. 12. In the decision reported in **Damodar S. Prabhu v. Sayed Babalal H** (2010(2) KHC 428 (SC)), it was held that in a Crl.A. No. 1973 of 2003 7 case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,50,000/- would meet the ends of justice. 13. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 146 of 2000 on the file of the Judicial First Class Magistrate, Nedumkandom is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.1,50,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within three months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid 8 Crl.A. No. 1973 of 2003 period, he shall suffer S.I. for a period of three months by way of default sentence. **(M.L. JOSEPH FRANCIS)** Judge tm