M.K. Abdul Hameed v. State of Kerala & Rafeeq

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **Crl.Rev.Pet.No.467 OF 2019** **AGAINST THE ORDER IN CMP 809/2019 DATED 31-01-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG** ## **REVISION PETITIONER/COMPLAINANT:** **M.K.ABDUL HAMEED, AGED 47 YEARS S/O.K.M.MOHAMMED, RESIDING AT CHEEKOTH HOUSE, THURUTHI P.O., CHERUVATHUR, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENTS/STATE & ACCUSED:** **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 RAFEEQ,** **S/O.P.SAIDALAVI, AGED 41 YEARS, RESIDING AT PARAMBIL HOUSE, VANNATHI ROAD, PARAMBIL PADY, VENGARA P.O., THIRURANGADI TALUK, MALAPPURAM DISTRICT - 676 304.** ## R1 **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.01.2020, THE COURT ON 04.02.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.467 OF 2019** **2** ## **'C.R'** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.467 of 2019** **--------------------------------------------** Dated this the 4[th] day of February, 2020 ## **O R D E R** Is it legal and proper to dismiss under Section 203 of the Code of Criminal Procedure, 1973 (for short 'the Code') a complaint filed for an offence under Section 138 of the Negotiable Instruments act, 1881 (hereinafter referred to as 'the Act') on the ground that the statutory notice sent to the drawer of the cheque was not served on him? This is the question which arises for consideration in this revision petition. 2. The revision petitioner is the complainant. He filed the complaint against the second respondent as Crl.M.P No. 809/2019 for the offence punishable under Section 138 of the Act. The notice sent by him to the drawer of the cheque, demanding payment of the amount of the cheque, was returned with the endorsement 'addressee left India'. The learned Magistrate dismissed the aforesaid complaint under Section 203 of the Code, holding as follows: **Crl.Rev.Pet.No.467 OF 2019** **3** “Complainant filed affidavit along with the complaint and thereafter another additional affidavit also. Averments in both affidavits and complaint would go to show that notice was not served to the accused. Cause of action under Section 138(c) of the N.I Act would arise only when the drawer of the cheque fails to make the payment within 15 days of the receipt of the notice. Section 142(1) (b) of the N.I Act provides that complaint is to be made within one month of the date on which the cause of action arise under Section (c) of the proviso to Section 138 of the N.I Act. In the instant case, notice was not served to the accused and the contents of notice was not brought to the notice of accused. Notice was neither refused nor unclaimed by the accused also. So, cause of action is not arisen in this case as provided under Section 138(c) of the N.I Act. Therefore, I find there is no sufficient grounds for proceeding against the accused.” 3. The legality and propriety of the aforesaid order passed by the learned Magistrate are challenged by the complainant in this revision petition. 4. Inspite of service of notice, the second respondent/accused has not appeared. Heard the learned counsel for the revision petitioner. **Crl.Rev.Pet.No.467 OF 2019** **4** 5. Section 203 of the Code provides that, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, if the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 6. The question to be considered here is, whether the learned Magistrate was justified in reaching a conclusion that there was no sufficient ground for proceeding against the accused for an offence punishable under Section 138 of the Act, on the ground that the statutory notice sent by the complainant was not served on the accused and it was returned with the endorsement “addressee left India”. 7. Clause (c) of the proviso to Section 138 of the Act provides that, cause of action for filing the complaint arises when the drawer of the cheque fails to make the payment of the amount of the cheque to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice. Section 142(1)(b) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, no court **Crl.Rev.Pet.No.467 OF 2019** **5** shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. 8. 'Receipt of the notice' by the drawer of the cheque need not be actual receipt of the notice. It can also be deemed receipt. Such deemed receipt is envisaged by Section 27 of the General Clauses Act which provides for raising a presumption that service of notice has been effected when it is sent to the correct address by registered post. 9. In view of the presumption under Section 27 of the General Clauses Act, when it is stated in the complaint that notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that inspite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the 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. When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of **Crl.Rev.Pet.No.467 OF 2019** **6** notice in terms of Clause (b) of the proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect (See **Alavi Haji v. Palapetty Muhammed : (2007) 6 SCC 555** ). 10. In **Alavi Haji** (supra), it has also been held that, Section 114 of the Indian Evidence Act read with illustration (f) thereunder 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. 11. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made on the cover containing the notice only to defeat the process of law, the court shall presume service of **Crl.Rev.Pet.No.467 OF 2019** **7** notice. This, however, is a matter of evidence and proof. Even in a case where notice is returned with the endorsement “addressee left India”, it would be open to the complainant to prove at the time of the trial of the case that the endorsement is not correct and that the addressee was available in the address to which the notice was sent. It would be premature at the stage of issuance of process to decide whether service of notice was deemed to be effected or not. The question whether notice as required under Clause (b) of the proviso to Section 138 of the Act has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice (See **Rajakumari v. Subbarama Naidu : AIR 2005 SC 109** , **Vinod Shivappa v. Nanda Belliappa : AIR 2006 SC 2179** , and **Ajeet Seeds Limited v. Gopala Krishnaiah : AIR 2014 SC 3057** ). 12. In the instant case, the impugned order does not disclose what is the actual averment made in the complaint regarding sending of notice to the drawer of the cheque. It is also not stated in the order whether the complainant has produced, along with the complaint, the postal receipt for sending the notice and the postal cover containing the notice which was returned to the complainant. In **Alavi Haji** (supra), it has been held that if such **Crl.Rev.Pet.No.467 OF 2019** **8** documents are produced along with the complaint, they form part of the complaint and thus absence of averments in the complaint with regard to sending of notice by registered post in the correct address of the drawer of the cheque is of no consequence. 13. Learned Magistrate has not considered any of the aforesaid aspects while dismissing the complaint under Section 203 of the Code. Learned Magistrate has dismissed the complaint solely on the ground that notice was not received by the accused and the notice was also not refused or unclaimed by the accused. The impugned order is not sustainable in law and it is liable to be set aside. 14. Consequently, the revision petition is allowed. The impugned order is set aside. The complaint filed by the petitioner stands restored to the file of the court below. The learned Magistrate is directed to make further enquiry into the complaint and to pass appropriate orders, in accordance with law. The petitioner shall appear in the court below on 24.02.2020. ## Sd/- **R. NARAYANA PISHARADI JUDGE** ## **lsn**