P. Sasidharan and Others v. State of Kerala and K.B. Krishnakumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934 CRL.A.No. 535 of 2007 ( B) ------------------------- (CC.679/2000 of JUDICIAL FIRST CLASS MAGISRATE,KARUNAGAPPALLY) APPELLANT/COMPLAINANT: ------------------------ P.SASIDHARAN, S.N.VIHAR, KADATHOOR MURI, THAZHAVA, KARUNAGAPPALLY. BY ADVS.SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS/STATE AND ACCUSED: -------------------------------- 1. STATE OF KERALA, REPRESENTED BY - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.B.KRISHNAKUMAR, CHERUKAMBISSERIL, - KADATHOOR, K.S.PURAM, KARUNAGAPPALLY. BY ADV. SRI.J.OM PRAKASH R2 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 0606-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A. No. 535 of 2007** ## **----------------------------------------** Dated the 6th day of June, 2012 ## **JUDGMENT** The complainant, in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, is the appellant herein as he is aggrieved by the judgment dated 6.12.2006 in C.C.No.679 of 2000 of the court of Judicial First Class Magistrate, Karunagappally, by which the learned Magistrate acquitted the accused under section 255 (1) Cr.P.C. 2. The case of the appellant/complainant is that, out of acquaintance between the complainant and the accused, and as requested by the accused, on 25.12.1998, the complainant had handed over a sum of Rs.7,00,000/- (Rs. Seven lakhs only) to the accused on 1.1.1999 at his house situated in Thazhava village. It is the further case of the appellant that , towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured for the reason that the fund in the CRL.A.NO.535/07 **:-2-:** account maintained by the accused is insufficient. It is the further case of the complainant that, though a statutory notice was caused to issue to the accused, the same was refused by him and thereby the offence punishable under section 138 of the NI Act is attracted against the accused since no amount is paid after the service of notice. During the trial of the case, PWs 1 and 2 were examined from the side of the complainant and produced Exts.P1 to P5. The accused himself was examined as DW1 and Exts. D1 to D1(b) were marked. During the trial of the case, among other several contentions, the accused advanced a plea that, no statutory notice was served on the accused and therefore, the offence punishable under section 138 of the NI Act is not attracted against the accused. As the service of notice, as contemplated in the proviso to Section 138 of the NI Act, is absolutely inevitable, the learned Magistrate, without going into the other merits of the case of both the complainant and the accused, considered the question whether a notice was served on the accused and it is found that no statutory notice CRL.A.NO.535/07 ## **:-3-:** was served or sent to the accused in his gulf address, in which he was available, and accordingly found that, the complainant has failed to prove the case under section 138 of the NI Act and consequently, the learned Magistrate has found that the accused is not guilty under section 138 of the NI Act and acquitted him under section 255(1) Cr.P.C.. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri P.B.Sahasranaman, the learned counsel for the appellant and Sri J.Om Prakash, the learned counsel appearing for the Ist respondent. I have also perused the judgment of the trial court. 4. To prove the service of statutory notice on the respondent, the complainant relied upon his own evidence adduced as PW1 and the evidence of PW2, the Postman, and also the documents, particularly Exts.P3 to P5. On the basis of the above evidence, as adduced before the trial court, the counsel for the appellant submitted before this Court that those documents and evidence are sufficient to hold that CRL.A.NO.535/07 **:-4-:** there was proper service of notice as contemplated in the proviso to Section 138 of the NI Act, especially, when in Ext.P5 unclaimed cover, there are several endorsements to the effect that, the addressee either refused to accept the same or unclaimed through Ext.P5 cover and Ext.P4 notice therein sent in the correct address of the accused. Therefore, the counsel submits that in the light of the decision of the apex court in **Alavi Haji v. Muhammed** (2007 (3) KLT 77)(SC), the trial court ought to have held that there was proper service of notice on the respondent/accused. It is the further submission of the learned counsel for the appellant that, in spite of the evidence on record, relying upon the decision of this Court in **George v. Jose (** 2006 (3) KLT 863), the learned Magistrate has held that, no step is taken to serve notice on the respondent in his gulf address and, therefore, there is failure in serving statutory notice on the respondent as contemplated in the proviso to section 138 NI Act. 5. On the other hand, the learned counsel for the CRL.A.NO.535/07 **:-5-:** respondent vehemently submitted that, the endorsement contained in Ext.P5 cover cannot be considered as genuine, since at the time of the alleged attempt of service of Ext.P5 cover, the accused/respondent was abroad and a valid refusal can be made only by the addressee who is in station. Therefore, it cannot be said that service is complete as per the mandate of Section 138 of the NI Act. It is also the submission of the learned counsel that in the decision of the apex court, cited supra, and relied on by the appellant, the accused can rebut the presumption of service of statutory notice on the basis of the available material, and in this case the accused rebutted such presumption and therefore, it cannot be held that there was proper service of notice. 6. I have carefully considered the submission of the learned counsel for the appellant and respondent and I have perused the judgment of the trial court. In the light of the arguments advanced by the counsel for the appellant and the respondent, the question to considered is, whether the CRL.A.NO.535/07 **:-6-:** trial court is justified in its finding that the complainant failed to prove the service of statutory notice under section 138 of the NI Act. 7. At the outset, it is to be noted that the cheque in question covers an amount of Rs.7,00,000/- and though there are evidence and materials adduced in support of the contention of the complainant as well as against the same, there is no decision on merit with respect to the claim of the complainant and the prosecution allegation. It is equally important to note that, the holder of the cheque in due course or the complainant has to establish that a statutory notice is properly served on the respondent within the time prescribed in the proviso to Section 138 NI Act. Though there are evidence on record, and rival contentions on the question of service of statutory notice, am not proposed to appreciate the same at this stage, particularly , in view of the manner which I proposed to dispose of this appeal. 8. The impugned judgment was passed on 6.12.2006 and at that time, the issue referred to above, particularly in CRL.A.NO.535/07 **:-7-:** the light of the facts and circumstances involved in this case, is governed by the decision reported in 2006 (3) KLT 863. The case In **Alavi Haji.v Muhamed** (2007 (3) KLT 77 (SC), was disposed of on 18.5.2007, which is the decision pressed into service by the learned counsel for the appellant in support of his argument with respect to the service of notice on the respondent. The learned Magistrate, while disposing the above Calendar Case, had no occasion to consider the dictum laid down by the Apex Court in the above decision, because the above decision was pronounced subsequently. In the above decision, the Apex Court has held that, where the payee despatches notice by registered post with correct address of the drawer of the cheque, the principle incorporated in S.27 of General Clauses Act would be attracted; the requirement of Clause (b) of proviso to S.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. It was also held that, CRL.A.NO.535/07 **:-8-:** 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. In paragraph 14 of the above decision it is held: “S.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 unnecessary 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 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. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement - refused-ornot available in the house - or-house locked - or - shop closed- or-addressee not in station-, due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh, State of M.P. v.Hiralal & Ors. & V.Raja Kumari v. P.Subbarama Naidu & Anr.) It is , therefore, manifest that in view of the presumption available under S.27 of the Act, it is not necessary to aver in the complaint under S.138 of the Act that service of notice was evaded by the accused or that the accused had a role to play CRL.A.NO.535/07 **:-9-:** in the return of the notice unserved.” ## It is also held in paragraph 15 of the above decision : “..........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. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to S.138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.” But in the present case, there is no discussion or finding as to whether the complainant has succeeded in proving the service of statutory notice on the respondent/accused on the basis of the available materials, especially, in view of Section 27 of the General Clauses Act. There is also no discussion or finding with respect to the question whether the respondent/accused has succeeded in rebutting that presumption by adducing material or evidence. Under the above factual scenario, according to me, the issue requires to be reconsidered by the trial court in the light of the decision CRL.A.NO.535/07 ## **:-10-:** of the Apex Court cited supra by application of the dictum laid down therein in the facts and circumstances and evidence and materials available in the present case, for which the matter required to be remanded back to the trial court. While the matter being remanded back, I am of the view that, both parties can be granted opportunities to adduce evidence or materials exclusively in support of their arguments with respect to the issue remitted back for consideration. As there is no decision on merit, the trial court is also directed to consider the same and to arrive its on finding and to dispose of the case accordingly. In the result, this appeal is disposed of setting aside the judgment dated 6.12.2006 in C.C.No.679 of 2000 of the court of Judicial First Class Magistrate, Karunagappally, and remanded the matter to the trial court for fresh consideration of the entire matter and, with liberty to the parties , if they so required, to adduce evidence on the issue regarding service of notice, and the learned Magistrate is directed to proceed to decide the entire case on merit and CRL.A.NO.535/07 ## **:-11-:** to dispose of the same in accordance with the procedure and law. Both the parties shall appear before the trial court on **16.7.2012** on which date, the learned Magistrate is directed to restore C.C.No. 679 of 2000 and he shall proceed to dispose of the same. **V.K.MOHANAN, JUDGE** kvm/- ## CRL.A.NO.535/07 **:-12-:**