M. Mohammed Kurikkal (dead) and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 01ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** ## **CRL.A.No.1923 OF 2003** **AGAINST THE ORDER/JUDGMENT IN CRA 276/2002 DATED 31-07-2003 OF SESSIONS COURT,MANJERI** **AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 544/2003 DATED 13-112003 OF HIGH COURT OF KERALA** ## **APPELLANTS/COMPLAINANT:** - **1 M.MOHAMMED KURIKKAL (DIED) S/O HYDRU KURIKAL, MANNARAKKUNNUMAL HOUSE, PAYYANAD P.O., MANJERI VIA, MALAPPURAM DISTRICT. [WITHIN THE LIMITS OF MANJERI POLICE STATION] [DIED]** - - **2 KUNHI KADIYUMMA** - **MOTHER OF LATE MANCHERI MOHAMMED KURIKKAL, AGED 73 YEARS, RESIDING AT MANCHERI HOUSE, PAYYANAD VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT.** - - **3 NAJMUNNEESA** - **SECOND WIFE OF LATE MANCHERI MUHAMMED KURIKKAL, AGED 26 YEARS, RESIDING AT MANCHERI HOUSE, PAYYANAD VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT.** - **4 SARIJA, STEP WIFE OF LATE MANCHERI MUHAMMED KURIKKAL, RESIDING AT MANCHERI HOUSE, PAYYANAD VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT.** - **5 MUHAMMED SONA D/O LATE MANCHERI MUHAMMED KURIKKAL, AGED 3 1/2 YEARS, (MINOR), REPRESENTED BY THE GUARDIAN MOTHER 2ND PETITIONER NAJMUNNEESA.** - **6 MUHAMMED HAIDAR S/O LATE MANCHERI MUHAMMED KURIKKAL, AGED 2 1/2 YEARS, (MINOR), REPRESENTED BY THE GUARDIAN MOTHER 2ND PETITIONER NAJMUNNEESA.** - **7 HIBA,STEP DAUGHTER OF MANCHERI MUHAMMED KURIKKAL, KURIKKAL, AGED 8 YEARS, (MINOR), REPRESENTED BY THE GUARDIAN MOTHER 3RD PETITIONER SARIJA. (*ADDL. APPELLANTS 2 TO 7 IMPLEADED AS PER ORDER DATED 04.07.19 IN CRL.M.A. NO.796/10)** Crl.A. No.1923 of 2003 -2- ## **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **- RESPONDENTS/ACCUSED STATE:** - **1 THARAKAN VEERAN S/O.MOOASAN HAJI, AGED 47 YEARS, VADAKEYIL HOUSE, THRIKALANGODE P.O., MANJERI VIA, MALAPPURAM DISTRICT. [WITHIN THE LIMITS OF MANJERI POLICE STATION]** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.M.K.CHANDRA MOHANDAS R2 BY PUBLIC PROSECUTOR, SMT. SHEEBA K.K.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1923 of 2003 -3- ## **JUDGMENT** **Dated this the 1[st] day of August, 2018** The appeal on hand is directed against judgment dated 31.07.2003 of Court of Sessions, Manjeri (referred to hereinafter as the appellate court) in Crl. Appeal No.2176/2002. The appeal was preferred from judgment dated 26.09.2002 of Judicial First Class Magistrate Court-II (Forest Offences) Manjeri (referred to as the trial court) in S.T. No. 68 of 2001. The appellant is the complainant who launched the prosecution and the respondent is the accused. 2. S.T. No. 68 of 2001 was taken cognizance of after recording the sworn statement of the complainant. Trial was held. The complainant and three other witnesses respectively examined as PW1 to PW4. Exts.P1 to P9 were also marked. On appreciation of the evidence the trial court found the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') and convicted and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.4,000/- (Rupees four thousand only). Crl.A. No.1923 of 2003 -4- 3. In case of default, the accused was also directed to undergo simple imprisonment for four weeks. The accused was further directed to pay Rs.20,000/- as compensation to the complainant. Aggrieved by the judgment, the accused preferred Crl.Appeal No.276/2002 before the appellate court. The judgment of the trial court was reversed by the appellate court. It was informed to the Court then that the complainant had died. Therefore, judgment was recalled by the appellate court. The complainant filed an application before the appellate court to implead the legal heirs of the complainant to continue with the prosecution. Order permitting impleadment was passed and thereby the legal heirs of the complainant were brought on record. 4. Learned counsel representing the appellant and the respondent were heard again. The main contention raised by Sri.Sathyanatha Menon, the learned counsel for the appellant was that the prosecution will not sustain, as the statutory notice contemplated under proviso to Section 138(b) was not caused to be served on the accused. 5. It was contended that notice issued to the accused was returned as unclaimed and Ext.P6 acknowledgement card Crl.A. No.1923 of 2003 -5- evidenced that. According to the learned counsel the corroborative oral evidence of the complainant and three witnesses examined on his side pointed that due to nonavailability of the accused in the address, intimation was given to one Mr.Abdul Azeez, who is a relative of the accused and available at his house when the notice was brought by postal people for service. The evidence adduced above was not appreciated by the appellate court in its proper perspective, but was discarded to hold that service of notice was not complete. The learned counsel has contended in the context that a scrutiny of the evidence on record is required to see whether the complainant has satisfactorily complied with the mandatory requirement to serve notice on the accused or not. 6. Per contra, the learned counsel for the respondent/accused has contended that the finding that notice was not served on the accused was entered by the appellate court correctly and therefore, interference is totally unwarranted. According to him, the finding of the trial court in the affirmative was correctly reversed by the appellate court and interference is uncalled for. 7. In the backdrop of the rival submissions, it has become Crl.A. No.1923 of 2003 -6- incumbent on this court to scrutinise the evidence to find out which court is correct in its finding. 8. The complainant got himself examined as PW1. The post mistress of Thrikkalangode Post Office and one Mr.Narayanan Moosadu, who has been entrusted with the notice on 16.01.2001 for service on the accused were examined as PW2 and PW3. The postmistress who had gone to the house of the accused on 16.01.2001 did not find the accused there and therefore, gave intimation to one Mr.Abdul Azeez avalable there. Ext.P6 is the notice returned unclaimed. In Ext.P6 endorsements of PW3 and PW4 that the accused was absent and therefore intimations were given on 16.01.2001 and 17.01.2001 are found. PW2 has spoken based on endorsements found on Ext.P6 that notice was returned to the sender as it was not claimed despite the intimation given on 16.01.2001. According to him, as per endorsement made on 17.01.2001 also the addressee was not available in his address and therefore the postal article was kept in the post office for 7 days and thereafter was returned to the sender. PW4 the real postman has stated that the appellant is known to him. He had been to the house of the accused on 16.01.2001 to deliver Ext.P6. But, Crl.A. No.1923 of 2003 -7- for want of presence of the accused there, intimation was given to one Mr.Abdul Azeez. According to him, Mr.Abdul Azeez is a relative of accused and there were occasions when he had received intimations on behalf of the accused. According to him, despite the intimation given, the accused did not turn up to receive Ext.P6 and therefore, it was returned to sender. 9. In the case on hand the accused does not have a case that the address found in Ext.P6 is not that of him or that it is incomplete. PW1 has categorically stated that the accused was available locally and has evaded Ext.P6. The accused has also failed to controvert the said version by producing necessary materials to establish his non-availability at the relevant time when Ext.P6 was taken for service in the address. Mr.Abdul Azeez, the alleged recipient of intimation was not examined. Even then, the corroborative versions of the witnesses together with the endorsement made in Ext.P6 would make it clear that intimation about the availability of the postal article at the post office for delivery was given to Mr.Abdul Azeez. Ext.P7, the ledger extract of the drawee bank also establishes that the address in which Ext.P6 was issued was that of the accused. 10. A perusal of Ext.P6 made it clear that endorsements Crl.A. No.1923 of 2003 -8- were made by postal people on it on 16.01.2001 and 17.01.2001. The endorsements are common and to the effect 'Absent, intimated”. Ultimately it was returned to the sender as 'unclaimed'. The accused failed to establish that he was abroad or out of station for a considerable period and for that reason he was unaware of it or that effort was not made to receive it. When evidence to that effect is not forthcoming and in the total absence of anything to controvert the oral evidence tendered by PW4 that it was frequent to entrust the intimation of the postal articles to Sri.Abdul Azeez, it can be derived that service of Ext.P6 was purposefully evaded by the accused to defeat the prosecution. In the absence of a particular case for the accused that the address in which Ext.P6 was issued was incorrect or incomplete, the legal principles emerged from **Alavi Haji C.C. v. Plapetty Muhammed** [2007 (3) KLT 77] undoubtedly comes for the rescue of the complainant and therefore is extracted hereunder : “Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is necessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the address is deemed to have knowledge of the Crl.A. No.1923 of 2003 -9- notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with postal endorsementrefused-or-not available in the house-or-house locked-or-shop closed-or-addressee not in station-, due service has to be presumed.” Therefore, from the aforesaid discussion of the evidence, there is every reason to hold that the statutory notice as contemplated under Section 138(b) N.I. Act was duly served on the accused and the accused evaded it only to defeat the proposed prosecution. 11. In the above circumstances, the judgment of the appellate court under challenge is liable to be reversed. All other aspects relating to the prosecution have been concurrently found by the trial court as well as the appellate court as established by the complainant successfully. No challenge is also made on those aspects. Therefore, a reiteration of those aspects is unwarranted and is avoided. 12. In the result, appeal succeeds and is allowed. The impugned judgment acquitting the accused for the reason that the complaint is unsustainable is reversed and the judgment of the trial court convicting the accused for the offence under Crl.A. No.1923 of 2003 -10- Section 138 N.I. Act is restored. In view of the submission made by the learned counsel for the respondent that the accused is a chronic diabetic patient and is undergoing dialysis, this Court is inclined to modify the sentence by reducing the time of imprisonment till rising of the Court. The prosecution being of the year 2001, the accused is liable to be imposed with a fine equivalent to double the amount of the cheque. It being statutory, it cannot be avoided. Therefore, the accused has to serve imprisonment till rising of the court and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for two months. When the fine amount is deposited, Rs.75,000/-, therefrom shall be deferred to the complainant as compensation. The trial court shall see that the sentence is executed without delay. **MARY JOSEPH Judge** NAB/ab/ttb