Mathew K. John v. State of Kerala and Anil Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM C.R.** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940** ## **CRL.A.No. 1390 of 2005** **AGAINST THE JUDGMENT IN C.C.NO.928/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKKARA DATED 04-02-2005** ## **APPELLANT/COMPLAINANT :** **MATHEW K.JOHN, KALARICKAL THARAYIL, IRAMATHOOR MURI, THRIPPERUMTHURA VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** ## **RESPONDENTS/STATE AND ACCUSED :** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 ANIL KUMAR, S/O.PURUSHOTHAMAN NAIR, CHAKKALAYIL VEEDU, PARUMALA MURI, KADAPRA VILLAGE, THIRUVALLA.** **R2 BY ADVS. SRI.K.P.SREEKUMAR SRI.P.M.SATHEESH SRI.R.GIREESH VARMA** ## **R1 BY SRI.D.CHANDRASENAN, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No. 1390 of 2005** **2** **C.R.** ## **JUDGMENT** This appeal on hand is directed against judgment dated 04.02.2005 of Judicial First Class Magistrate Court, Mavelikkara (for short 'the court below') in CC No.928/2002. CC No.928/2002 was originated from a private complaint filed by the appellant before the court below, to launch a prosecution under Section 142 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'). The offence alleged is one punishable under Section 138 of the N.I. Act. The facts of the case are summarised hereunder: 2. A cheque dated 11.03.2002 was issued by the 2[nd] respondent to the complainant towards discharge of monetary liability of Rs.3,50,000/- borrowed by him. The cheque was presented for encashment before the Indian Overseas Bank, Valanjavattom, on 28.08.2002. A memo was obtained from the Bank intimating that the cheque was bounced for the reason of insufficiency of funds in the account maintained by the drawer of the cheque. Notice as contemplated under Clause (b) of Proviso to Section 138 N.I. Act was issued on 02.09.2002. The 2[nd] respondent failed to repay the amount or sent a reply. Therefore, the prosecution was launched alleging commission of the offence punishable under Section 138 N.I. Act. **CRL.A.No. 1390 of 2005** **3** 3. The sworn statement of the complainant was recorded and the complaint was taken on file as CC No.928/2002. Process was served on the accused and on his appearance, particulars of the offence were read over and explained to him. As he pleaded not guilty to those, trial was held. Complainant was examined as PW1 and Exts.P1 to P5 were marked. On closure of the evidence of the complainant, the incriminating circumstances brought on record by him were put to the accused. He denied all the questions put and pleaded that a chitty was subscribed with the complainant in the year 2002 and a blank cheque was given as security for the prized money. According to him, there was default of payment of instalments towards chitty. The liability to repay the sum as pleaded by the complainant is denied by him. He has further stated that evidence to substantiate want of liability is available and that would be adduced. But when he was called upon to adduce evidence, he failed to do so. 4. The counsel representing both parties were heard. Both oral as well as documentary evidence on record were appreciated. The court below found the accused not guilty of the offence under Section 138 N.I. Act and accordingly acquitted him. **CRL.A.No. 1390 of 2005** **4** The unsuccessful complainant has approached this Court in the appeal on hand. For the sake of convenience the parties to this appeal are referred to hereinafter as the complainant and the accused. 5. Sri.George Varghese Perumpallikuttiyil, and Sri.Girish Varma respectively advanced arguments for the accused and the complainant. According to Sri.George Varghese, the learned counsel representing the appellant, the court below is highly erred in arriving at findings on merits that the accused is not guilty as the court below is devoid of territorial jurisdiction to try the offence. According to him, the court below ought not to have held the trial but the complaint ought to have been returned for presentation before the court having jurisdiction. The argument secondly advanced was that despite the accused raising a contention that notice as contemplated under Clause (b) of Section 138 was not served on him, the court below wrongly rejected the same. According to him, the finding that the accused is not guilty was entered by the court below after arriving at a conclusion that notice as mandated by proviso to Clause (b) of Section 138 was not served upon the accused. It is contended by the learned counsel that the accused did not have a case that **CRL.A.No. 1390 of 2005** **5** notice was issued in his incorrect address or in an address which is insufficient for a proper service and in such circumstances Section 27 of the General Clauses Act would come into play and the court below could have drawn the presumption on its basis that notice was duly served. It is also contended by the learned counsel that notice was issued to the accused in his correct address and as revealed from Ext.P4 acknowledgement card, it was evidenced as received by the addressee in the address provided. According to the learned counsel, letters 'C.K.P.' could be clearly made out from the signature found in Ext.P4 and 'C' stands for 'Chakkalayil Veedu', the house name of accused and 'P', stands for 'Purushotaman Nair', the father of the accused and therefore, the court below ought to have been convinced that the notice sent was served on the father of the accused in the address furnished therein. Raising arguments as above, the learned counsel pleaded for allowing the appeal and reversing the judgment under challenge. 6. Per contra, Sri.Girish Varma, the learned counsel for the 2[nd] respondent has contended that the court below has arrived at the finding of guilt of the accused in the correct perspective and the same does not call for any interference. According to him, the **CRL.A.No. 1390 of 2005** **6** complaint filed by the appellant before the court below to launch the prosecution, does not contain the date on which the amount was advanced. According to him, even the proof affidavit filed before the court does not contain the date on which the amount was allegedly advanced. It is submitted by the learned counsel that in such a circumstance, the complainant/appellant can only be held to have not established the execution of the cheque. The contention advanced by the learned counsel secondly was that though the address Ext.P5 notice bears was not denied by the 2[nd] respondent, the signature found in Ext.P4 acknowledgement was denied to have been affixed by him. According to him, in the above context, the court below has correctly found that Ext.P5 notice was not served on the 2[nd] respondent. It is further contended by the learned counsel that circumstance being so, the court below ought not to have drawn presumption under Section 27 of the General Clauses Act in favour of the appellant. Raising contentions as above, the learned counsel urged to dismiss the appeal and confirm the impugned judgment. 7. The merit of the contentions is analysed in the backdrop of the evidence on record. As already put, the complainant had mounted the box to depose as PW1. A proof affidavit in lieu of **CRL.A.No. 1390 of 2005** **7** examination in chief was filed by him and it is relevant to notice that the version tendered by him in the box, clearly support his pleadings in the complaint. He was confronted by the 2[nd] respondent on his source of income and the date on which the amount was advanced. PW1 has stated that the amount was advanced in the first half of January, 2002. It is pertinent to note that the accused did not succeed while confronting PW1 on source of income. PW1 has disclosed that as a financier he was authorised to transact money worth Rs.10,00,000/-, based on turn over. PW1 has also stated that money was advanced based on his acquaintance with the 2[nd] respondent. According to him, Ext.P1 post dated cheque was issued at a later point of time only to discharge the said liability. As a suggestion, the respondent has put to PW1 that Ext.P1 cheque was issued by him as security for a debt of Rs.10,000/- advanced to his friend. The said suggestion was outrightly denied by PW1. Therefore, the 2[nd] respondent has thoroughly failed to controvert PW1 on his version about the transaction. Therefore, PW1 cannot be said to have failed in establishing his case in the manner pleaded by him. 8. In the above context the presumption under Section 139 N.I Act would also be avilable to support the complainant. As **CRL.A.No. 1390 of 2005** **8** stated, the presumption would remain till the contrary is established by the accused. As already stated, a suggestion was putforth by the accused regarding an alternative transaction and it was denied by PW1. But it is pertinent to note that during examination under Section 313 (1)(b) Cr.P.C, the 2[nd] respondent has taken a stand different from the one suggested to PW1 during cross examination. During examination under Section 313 (1)(b) Cr.P.C the plea specifically taken by the 2[nd] respondent was that a chitty subscribed with the complainant was bid by him and a cheque was given as security for the prize money. According to him though the chitty was bid and a cheque was given as security, the prize money was not disbursed to him. PW1 was not questioned by the accused with reference to the subscription of chitty with his father and the bid of it by him. The accused did not enter into the box also to depose about the version. Therefore, accused failed to establish the transaction as pleaded by him or in otherwords, he has thoroughly failed to rebut the presumption either by bringing forth preponderance of probabilities in the evidence of PW1 or by adducing affirmative evidence in defence. In the aforesaid circumstances, the complainant can only be taken as successfully established the execution of the cheque. **CRL.A.No. 1390 of 2005** **9** 9. The question next to be considered is whether notice as mandated by the proviso to Section 138(b) N.I. Act has been served on the 2[nd] respondent prior to the launching of the prosecution. The 2[nd] respondent has denied service of notice on him. It is pertinent to note at this juncture that address in which the notice was allegedly issued and served on him is not denied by the 2[nd] respondent as his own. He has not raised a plea that the address furnished is insufficient. Such being the circumstances, there is no basis in contending that scope for drawing presumption under Section 27 of the General Clauses Act does not exist in the case on hand. 10. The decisions cited by the learned counsel for the appellant are also dealt with. In **C.C. Alavi Haji v. Palapetty Muhammed and another** [(2007) 6 SCC 555] it is held by the Apex Court that where the drawee despatches by registered post in the correct address of the drawyer of the cheque, the presumption under Section 27 of the General Clauses Act would come into play. The dictum of the Court is extracted hereunder for reference purpose : « 10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct **CRL.A.No. 1390 of 2005** **10** address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (C) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. » The Apex Court had also dealt with Section 114 of the Evidence Act in the case supra. The Court observed on the basis of the above provision that : “13. According to Section 114 of the Act, read with Illustration ( _f_ ) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by **CRL.A.No. 1390 of 2005** **11** post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the G.C. Act is extracted below : “27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”” 11. In the case on hand, as already put forth, the 2[nd] respondent/accused has no case that the address in which Ext.P5 notice was issued is a wrong or insufficient one. It is relevant to notice from Ext.P4 acknowledgement card that the receipt of notice was acknowledged from the signature which it bears and letters “C.K.P” contained in the address stated in Ext.P4. Therefore, as per the dictum cited supra, Section 27 of the **CRL.A.No. 1390 of 2005** **12** General Clauses Act would be attracted in the case on hand. The court below has not adverted to Section 27 of the General Clauses Act and Section 114 of the Evidence Act while arriving at a finding that the statutory notice as mandated by proviso to sub-section (b) of Section 138 was not served on the 2[nd] respondent. The finding of the court below therefore is perverse and is liable to be interfered with. 12. The next question to be answered is the lack of territorial jurisdiction in entering into the findings by the court below on merits. The learned counsel for the appellant has placed two decisions to support his argument that the question of territorial jurisdiction has to be raised at the preliminary point of time, prior to entering into trial. In **Thressiamma v. State of Kerala** [2010(4) KLT 598], a Division Bench of this Court had occasion to answer a reference put forth on questions stated hereinbelow : “(i) Whether place of issuance of notice would give territorial jurisdiction to the Magistrate Court of that place to try a case u/s.138 of the Negotiable Instruments Act ? (ii) Whether the law laid down in 2007 (1) KLT SN 43(Case.No.60) =ILR 2006(4) Ker.901 and 2001(1) KLT 68 are correct ? (iii) Whether presentation of cheque before the drawee bank would give rise to a cause of action ?” **CRL.A.No. 1390 of 2005** **13** The main question dealt with in the case was whether place of issuance of notice would give territorial jurisdiction to the Magistrate Court of that place to try a case under Section 138 N.I. Act. The Division Bench in paragraph 19 held to the following effect : “19. A reading of the above provision would show that the revision petitioner, who had consented, though not volunteered, to face trial before the Chief Judicial Magistrate, Pathanamthitta and suffered conviction thereon, is not entitled to challenge the conviction and sentence on the ground that the trial was conducted at a wrong place. It is not disputed that the Chief Judicial Magistrate, Pathanamthitta has inherent jurisdiction to try an offence under Section 138 of the Negotiable Instruments Act. What was lacking is only the territorial jurisdiction. In the event the revision petitioner (accused) had a case that the Chief Judicial Magistrate, Pathanamthitta had no territorial jurisdiction to entertain the complaint and proceed with the trial, it should have been raised at the earliest. In the event an accused in a criminal case has got a dispute regarding the territorial jurisdiction of a magistrate, before whom he is prosecuted, it should have been raised at the earliest opportunity, at least before starting the trial. In the event he keeps silence, faces trial and suffers conviction, he is not entitled to raise the dispute later in appeal or in a revision so long as such trial had not caused any prejudice to him. There is nothing on record to show that such objection regarding the jurisdiction was raised by the revision petitioner before proceeding with the trial. There is also no material to show that because of the trial in a wrong place, any prejudice was caused to him. In the above circumstances, in view **CRL.A.No. 1390 of 2005** **14** of S.462 of the Code of Criminal Procedure, the revision petitioner is not entitled to assail the conviction and sentence thereon in revision against the judgment in appeal. Going by the judgment in appeal, we find that no dispute regarding jurisdiction was argued even in appeal. So, the challenge regarding jurisdiction in revision can no way be entertained.” (emphasis supplied) ## 13. In **Arun Ramachandran Nair v. State of Kerala** [2011(3) KLT 212] a Division Bench of this Court had occasion to consider a reference wherein the main question put forth was the time at which an issue of territorial jurisdiction should be raised. The court in paragraph 17 had held as follows : “17. We do in these circumstances clarify that the expression 'trial' was not employed by the Division Bench in paragraph 19 of _Thressiamma_ (supra) in any technical or rigid sense. It must be driven home clearly that objection to territorial jurisdiction has to be raised at the earliest opportunity. Whether it has been raised at the earliest opportunity or not is a question to be considered in the facts and circumstances, of each case. Ordinarily, it must be raised necessarily before the 'trial' - we mean-before the adducing of evidence by examination of witnesses has commenced. It is unnecessary to prescribe any rubicon after crossing which the objection cannot be raised. Suffice it to say that objection must be raised at the earliest opportunity and whether objection has been raised at the earliest opportunity or not is a question of fact to be decided in the facts of each case. By way of abundant caution, it has certainly to be said that the objection must be raised before the commencement of 'trial' **CRL.A.No. 1390 of 2005** **15** meaning thereby that such objection must be raised before the actual adducing of evidence by examination of witnesses in court. We may hasten to observe that the mere fact that chief affidavit has been filed will not deprive the accused of his right to question the jurisdiction of the court. We say so because we do not want to permit mischievous complainants to file a chief affidavit hurriedly to frustrate the possibility of valid objection to territorial jurisdiction being raised. Similarly it is not the intendment of the learned Judges in _Thressiamma_ or us in this judgment that the accused can wait for any length of time to raise objection to territorial jurisdiction and the same if raised prior to the recording of plea will have to be entertained invariably. Facts of each case will have to be considered to decide whether objection has been promptly raised. The expression before starting of the 'trial' has been used in _Thressiamma_ (supra) only to indicate that objection must be raised at the earliest opportunity and that such objection cannot be permitted to be raised after the actual adducing of evidence in Court has started. We so clarify the decision in _Thressiamma_ (supra). We find no reason in these circumstances to doubt the dictum in _Thressiamma_ or refer the issue to a larger Bench” Therefore, the question of territorial jurisdiction shall be raised at the preliminary point of time, prior to commencement of trial in a case. It is also held that the trial would commence only with the actual adducing of evidence in court. If the trial has commenced and ended, without raising the question of territorial **CRL.A.No. 1390 of 2005** **16** jurisdiction preliminarily, it is not necessary for the court to stick on to the jurisdictional aspect. 14. The facts of the case _supra_ reveal that, the question regarding lack of territorial jurisdiction was raised therein only after the trial and during the course of argument. In the aforesaid circumstances, the court had dealt with the evidence that has been recorded and based on that entered into the merits of the case to adjudicate on the issues involved. It is true that the question of lack of territorial jurisdiction was held in the negative and the other points raised in the case on hand were also answered on merits affirmatively. Therefore, the issue regarding want of jurisdiction need not be dealt with at this point of time. The second respondent had not raised the question of territorial jurisdiction at the primary stage. Therefore, the court had proceeded to hold the trial and dealt with the prosecution on merits. It is the said finding that was taken up in challenge in the appeal on hand by the unsuccessful complainant. Therefore, this Court is perfectly justified in not delving on the question of want of territorial jurisdiction in the appeal on hand. 15. For the foregoing reasons, the judgment under challenge succeeds and is liable to be interfered with. The complainant has **CRL.A.No. 1390 of 2005** **17** successfully established service of notice on the accused and satisfactorily discharged his burden to establish the execution of the cheque. The complainant was also successful in establishing that the cheque was presented before the bank and was bounced for the reason of insufficiency of funds. Notice was also found served within the statutory time frame. The payment demanded by the notice remained unpaid and the prosecution in question was also launched within the statutorily provided time limit. Therefore, interference with the impugned judgment is called for. In the result, criminal appeal stands allowed. The judgment under challenge is set aside. The second respondent is found guilty for the offence under Section 138 N.I. Act. He is sentenced to undergo imprisonment till rising of the court and to pay Rs.3,50,000/- the amount covered by the cheque as fine, within a period of one month from the date of receipt of a certified copy of this judgment. On default of payment of the sum, the 2[nd] respondent shall undergo simple imprisonment for three months. The fine amount when paid shall be defrayed as compensation to the appellant on application being moved by him for the purpose before the court below. The second respondent shall also surrender before the court below to serve the substantive **CRL.A.No. 1390 of 2005** **18** sentence immediately on receipt of a copy of the judgment. In case the second respondent failed to surrender, the court below shall resort to compulsory measures to procure the presence of the accused and to see that the sentence is executed. **Sd/-** ## **MARY JOSEPH** **JUDGE** ttb/NAB