Naveed Akthar Sait v. State of Kerala and Mermaid Marine

**CRL.MC NO. 1618 OF 2021** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **CRL.MC NO. 1618 OF 2021** **IN ST 111/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, CHERTHALA,** ## **ALAPPUZHA** **PETITIONER:** NAVEED AKTHAR SAIT AGED 41 YEARS S/O.ABDUL KADER SAIT, PROPRIETOR M/S NAAZBAL FOREX PRIVATE LIMITED, NARAKATHARA ROAD, NEAR SHENOYS THEATRE, ERNAKULAM HAVING THE PERMANENT ADDRESS AT FLAT NO.202, MAHAVIR TOWER, LBS (MARG), MUMBAI - 400 080. BY ADVS. LAL K.JOSEPH SRI.P.MURALEEDHARAN (THURAVOOR) SMT.T.A.LUXY SHRI.SURESH SUKUMAR SRI.ANZIL SALIM ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031. 2 MERMAID MARINE AROOR, REPRESENTED BY ITS PROPRIETOR, SAJAN AUGUSTINE, AP 11/45, KARIKKANI KALATHIL HOUSE, AROOR P.O., CHERTHALA, ALAPUZHA, PIN - 688 534. BY ADV SRI.B.PRAMOD BY PUBLIC PROSECUTOR SMT.MAYA M N THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT 29.10.2021 PASSED THE FOLLOWING: **CRL.MC NO. 1618 OF 2021** 2 ## **ORDER** This Crl.M.C , filed for quashing the proceedings in ST No.111 of 2019 on the file of the Judicial First Class Magistrate Court-III, Cherthala, wherein, the petitioner is arrayed as the accused in Annexure A4 complaint filed by the second respondent. 2. The petitioner contends that he left India on 12.12.2012, which is evident from Annexure A3 and Annexure A2 will prove that he had sold his flat on 25.01.2013 and Annexure A1 would prove that he has vacated his business premise as early as in January, 2018 and thus he could not have issued the cheque in question. On 18.02.2016, I.e, the alleged date of issuance of cheque, as well as on the date when the notice preceding the institution of the complaint was sought to be delivered, he was not in India and hence no offence is made out and on that footing, sought for quashing the proceedings. 3. Heard Sri.Lal K.Joseph,the learned counsel for **CRL.MC NO. 1618 OF 2021** 3 the petitioner, Sri.B.Pramod, learned counsel for the second respondent and Smt.Maya M.N., the learned Public Prosecutor. 4. Learned counsel for the petitioner drew my attention to paragraph 1 of the complaint, which is extracted. “ The complainant and the accused knowing each other. The accused borrowed an amount of Rs.9,80,000/-(Nine Lakhs and Eighty Thousand only) for his business purpose from the complainant on condition that the amount will be returned immediately. But the accused failed to keep his words and when complainant demanded the same amount on 18.06.2013 the accused issued a cheque to the complainant bearing Cheque No 132259 of Rs.9,80,000/(Nine Lakhs and Eighty Thousand only) drawn on I.N.G.Vysya Bank, Ernakulam main branch in favour of the complainant.” 5. He submits on the basis of these averments, it is clear that the cheque was stated to be issued on 18.06.2013, on which day he was abroad, as evident from Annexure A3, the relevant pages of the passport. He also submits that the notice sent to his official address was returned with the endorsement 'addressee left', and not 'unclaimed' as stated in the complaint. Thus, it is his specific case that neither on the date when he issued the cheque nor on the date when the notice was **CRL.MC NO. 1618 OF 2021** 4 attempted to be served, he was in India, and as such, no offence could have been charged against him under Section 138 of the NI Act, more particularly, in view of the allegations in para 1 of the complaint aforementioned. 6. Learned counsel for the respondents, at the outset submitted that nowhere in the notice or in the complaint the physical presence of the petitioner was mentioned. The demand made cannot be understood as the demand made in person. At any rate, these are all matters which are to be brought in evidence during the trial and not by way of a petition under Section 482 of the Code of Criminal Procedure. 7. Learned counsel for the petitioner also relied on the judgments in **Mohd.Akram Siddiqui v. State of Bihar and Another** [2019(13) SCC 350] and **Aneeta Hada and Others v. M/s.Godfather Travels & Tours Pvt.Ltd and Another** (2012 KHC 4244) to support his contention. 8. Learned counsel for the respondents relying on the judgments reported in **Usman v. Muhammed Ali** [2017(3)KLT SN 91(C.No.115)] (Crl.R.P.No.4010 of 2007) , **Jitendra Kumar and Another v. State of U.P. and Another** **CRL.MC NO. 1618 OF 2021** 5 (2001 KHC 2423), **Prashant Kumar Nimgani v. State of M.P. and Another** (2019 KHC 2624) and **Monichan P.V. v. State of Kerala and Another** [2020(3) KHC 200] urged for dismissing the petition. 9. Having considered the rival contentions, I have no doubt that the contentions raised seeking quashment of the complaint are not liable to be countenanced in a petition under Section 482 Cr.P.C for the singular reason that the questions of fact urged can only be settled after evidence is taken into consideration in a trial, more so a plea in the nature of alibi. The decision relied on by the learned counsel for the petitioner in **Mohd.AkRam Siddiqui** (supra) was one in which the Hon'ble Supreme Court did hold that in an appropriate case, where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered. It is further held in the said decision that on facts, that at no point of time either before the High Court or before the Supreme Court any dispute was raised by the contesting respondent therein, with regard to the passport documents and immigration papers and since it was not in **CRL.MC NO. 1618 OF 2021** 6 dispute that on the said date the accused-appellant was not in India, the above-referred papers beings public documents were looked into. It is amply clear that the reason for relying on the passport and immigration papers was solely for the reason that they were not disputed at all and the further fact that the petitioner therein was not in India was also an admitted case. The position in the instant case is entirely different as the second respondent does not admit any of the assertions of the petitioner regarding his non-availability in India to sign the cheque or about the entries while the notice under Section 138(b) of the NI Act was attempted to be served. The judgment of the Hon’ble Supreme Court referred above is clearly distinguishable and it lends no support to the petitioner’s contention in the instant case, as it is obvious that the said decision which centered round its own facts cannot be a precedent in the present case which is based on its own facts. 10. I am in total agreement with the submission of the learned counsel for the respondent that these being disputed questions of fact cannot be considered in this petition, on the basis of the documents produced and they can be settled **CRL.MC NO. 1618 OF 2021** 7 only at the trial. Regarding the contention that the petitioner was not in India and the postal article was sent back noting 'addressee left' and it was not a case of 'unclaimed', the learned counsel for the petitioner relied on the judgment in **Monichan P.V. v. State of Kerala and Another** 2020(3) KHC 200], in which it was held as follows:- 16. The Postal Manuals require persons absenting from or leaving their place of address to places whether inland or abroad, to intimate the concerned post offices about such departure and furnish correct postal address for delivering mails. In the absence of the changes and variations in the postal address being periodically notified, the serving authorities have no option other than to return the communications to the senders themselves as unclaimed with requisite endorsements thereon. The addressee who neglects or fails to inform the changed address with the postal authorities does have, in my opinion, no right to contend that service was not made or attempted in his correct address and presumption of service under Section 27 cannot consequently be drawn against him. A person leaving for abroad owes a duty to the postal authorities to intimate the address details where he desires the registered post sent in his name to be taken for delivery, in his absence from station. Any breach in this respect will certainly entitle the sender to fall back upon the presumption of deemed service under Section 27 and contend that post **CRL.MC NO. 1618 OF 2021** 8 was served in the known and correct address of the sendee. 17. The accused has no case that he had made necessary arrangements with the postal authorities before leaving for Saudi Arabia, for receipt of registered posts addressed in his name, in his absence from the station. Nor does he have a case that he had already furnished his foreign address to the appellant before the demand notice was despatched in his known house address. I am satisfied that proof of despatch of Ext.P4 notice in the known house address of the accused entitles the appellant to fall back upon the presumption of deemed service under law and contend that service is proper. The contrary finding of the lower appellate court is therefore, erroneous under law.” 11. This decision applies on all fours in the present case and there is no case for the petitioner that he had intimated the postal authorities or made any arrangements before leaving the country regarding the delivery of the postal articles in his absence. It is also to be noticed that the contentions of the petitioner in the instant case for quashing the prosecution if accepted would lead to disastrous consequences. Every case of this nature can be defeated by such pleas of alibi **CRL.MC NO. 1618 OF 2021** 9 and about the receipt of the notice in proceedings under Section 482 of the Cr.P.C. The respondent also gets support from the judgments in **Usman v. Muhammed Ali** [2017(3)KLT SN 91(C.No.115)] (Crl.R.P.No.4010 of 2007) and **Jitendra Kumar and Another v. State of U.P. and Another** (2001 KHC 2423). 12. None of the grounds warrant interference under Section 482 Cr.P.C. to quash the proceedings in ST No.111 of 2019, on the file of the Judicial First Class Magistrate Court-III, Cherthala . However, I make it clear that these observations are being made only for the purpose of the present quash petition and cannot be construed as an opinion about the merits of the case which the trial Court is to consider in accordance with law uninfluenced by any of what is stated above. The petition fails and thereby dismissed. Sd/- **MOHAMMED NIAS.C.P., JUDGE** dlk 22.10.2021 **CRL.MC NO. 1618 OF 2021** 10 ## **APPENDIX OF CRL.MC 1618/2021** PETITIONER'S ANNEXURE |ANNEXURE A1|THE LANDLORD C.VINOD HAS ISSUED A LETTER EVIDENCING| |---|---| ||THE VACANT POSSESSION OF THE BUSINESS PREMISES OF| ||M/S.NAZBAL FOREX PRIVATE LIMITED.| |ANNEXURE A2|TRUE COPY OF THE SALE DEED NO.340/2013 OF| ||S.R.O.ERNAKULAM DATED 25/1/2013.| |ANNEXURE A3|TRUE COPY OF PASSPORT NO.J3114974 ISSUED ON 4/3/2011| ||ISSUED BY THE REGIONAL PASSPORT OFFICER, KOCHI.| |ANNEXURE A4|THE CERTIFIED COPY OF THE S.T.111/19 ON THE FILE OF| ||CHIEF JUDICIAL MAGISTRATE, CHERTHALA.| |ANNEXURE A5|THE CERTIFIED COPY OF THE ENDORSEMENT STAY PETITION.|