P. V. Jayan v. Rajappan and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933** ## **CRL.A.No. 1038 of 2005(F)** **------------------------** **AGAINST THE JUDGEMENT/ORDER IN CRLP.240/2005 Dated 20/05/2005 CC.981/2002 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM ....................** ## **APPELLANT(S): COMPLAINANT.** **------------------------------------------------** **P.V.JAYAN, S/O.P.V.VISWANATHAN, P.L.NIVAS, CHETTIMANGALAM KARA, NADUVILE VILLAGE, VAIKOM TALUK.** **BY ADV. SRI.S.RADHAKRISHNAN** ## **RESPONDENT(S): ACCUSED.** **--------------------------------------** **1. RAJAPPAN, ASARIPARAMBIL HOUSE, THALAYAZHAM KARA AND VILLAGE, VAIKOM TALUK.** **2. THE STATE OF KERALA, REP. BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. S.V. NAZAR.** **ADV. SRI.N.SUKUMARAN FOR R1 SRI.S.SHYAM FOR R1 SRI.BOBBYMATHEW KOOTHATTUKULAM FOR R1 SRI.LATHEESH SEBASTIAN FOR R1** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kp/-** ## **N.K.BALAKRISHNAN, J. ----------------------------------Crl.A.No.1038 of 2005 ------------------------------Dated this the 2[nd] day of Septembver, 2011** ## **J U D G M E N T** The complainant is the appellant. His complaint filed under Section 138 of the N.I.Act against the respondentaccused ended in acquittal. This appeal is directed against that acquittal. The case of the complainant is that the accused had borrowed Rs.50,000/- from the complainant on 7.1.2002 and to discharge that debt, Ext.P1 cheque was issued, which on presentment was bounced due to insufficiency of funds. The complainant was informed of the same as per Ext.P3 memo dated 20.6.2002. The statutory notice was sent on 5.7.2002, which according to the complainant, was accepted by the accused on 8.7.2002. Since the amount was not paid, the complaint was filed. 2. The complainant got himself examined as P.W.1 and Exts.P1 to P7 were marked. On the side of the defence, the Postmistress was examined as D.W.1 and Ext.D1 Crl.A.No.1038 of 2005 -: 2 :- delivery slip was marked through her. The learned Magistrate found that the complaint was barred by limitation. The learned Magistrate further found that the statutory notice should have been sent on 4.7.2002. But admittedly it was sent only on 5.7.2002, which was received by the accused 6.7.2002. Therefore, the learned Magistrate found that the notice was sent beyond the period of 15 days prescribed under the proviso. It was also found by the learned Magistrate that the complaint was filed only on 24.8.2002, but actually the complaint should have been filed on 19.8.2002. Hence the learned Magistrate acquitted the accused. 3. The learned counsel for the appellant-complainant would submit that the reasons stated by the learned Magistrate to hold that the notice was sent beyond the prescribed period and that the complaint was also filed beyond the period of one month as stated in Section 142(b) of the N.I.Act is incorrect and that there is wrong Crl.A.No.1038 of 2005 -: 3 :- computation of the different periods. The cheque was dishonoured on 20.6.2002 as can be seen from Ext.P3. If so, the notice should have been sent within 15 days of that notice. While computing the period, the first day has to be excluded and if so, the period of 15 days has to be computed from 21.6.2002. Therefore, if the notice was sent on 5.7.2002, it will be well within the 15 days period as provided under proviso (b) to Section 138 of the N.I.Act (as it stood then). The learned counsel submits that the court below on an erroneous impression that the period has to be computed from 20.6.2002 itself, came to a wrong calculation that the notice should have been sent on 4.7.2002. That finding is incorrect in view of what has been stated above. 4. The learned counsel would submit that the court below has also gone wrong in coming to the conclusion that the complaint filed on 24.8.2002 is beyond the period prescribed. It is pointed out that the notice which was sent Crl.A.No.1038 of 2005 -: 4 :- on 5.7.2002, even according to the Postmistress, was served on the accused only on 6.7.2002. If so, excluding 6.7.2002, the period of 15 days will expire only on 21.7.2002. If so, the complainant ought to have filed the complaint on or before 21.8.2002 since the word used under Section 142 of the N.I.Act is one month and not 30 days. It is not disputed that from 20.8.2002 to 23.8.2002 (both days inclusive) the court was closed for Onam holidays. Therefore, since the court was not sitting from 20.8.2002 to 23.8.2002 (both days inclusive), the complaint which was filed on 24.8.2002 was well within the statutory period prescribed, it is argued by the learned counsel for the appellant. In this context, the learned counsel has relied on a decision of this court in **Chandrasenan v. George** [2003 (3) KLT 151] in which the applicability of Section 10 of the General Clauses Act was dealt with. If the first day is excluded and the last day is included, the complaint should have been filed on or before 21.8.2002. 20.8.2002 to Crl.A.No.1038 of 2005 -: 5 :- 23.8.2002 were public holidays. Hence the complaint filed on 24.8.2002 is perfectly within the time prescribed. The learned Magistrate found that though 20.8.2002 to 24.8.2002 were public holidays, the complainant could have been filed an affidavit to condone the delay. No such affidavit was seen filed in this case. The filing of a delay condonation petition was a condition for taking the complaint by the court after the prescribed period (as the law then stood). The provisions contained in Section 10 of the General Clauses Act itself saves the position. It is submitted that there was a specific statement in the complaint that as to why the complaint was filed on 24.8.2002 and why the days 20.8.2002 to 23.8.2002 (both days inclusive) has to be excluded. In such circumstances, according to the learned counsel, the learned Magistrate was not justified in acquitting the accused on the assumption that it was barred by limitation. 5. The finding to the contrary entered by the learned Crl.A.No.1038 of 2005 -: 6 :- Magistrate is thus set aside. Under Sec.10(1) of the General Clauses Act, it is clear that the complaint was to be filed on 20.8.2002. The court was closed on that day and also on three subsequent days 21.8.2002, 22.8.2002 and 23.8.2002, being public holidays. The complaint could not be filed on the last day prescribed; that is on 20.8.2002 as it was a holiday. The complaint was filed on the next working day; that is on 24.8.2002. Hence the complaint filed on 24.8.2002 must be deemed to have been the complaint actually filed on 20.8.2002 the last day prescribed for filing of the complaint. In view of the deeming provision contained in Sec.10(1) of the General Clauses Act, no separate petition is required. The argument advanced by the learned counsel for the accused on that point cannot be sustained. 6. The specific case of the complainant is that the accused had borrowed Rs.50,000/- and it was to discharge that debt Ext.P1 cheque was issued. On presentment it was Crl.A.No.1038 of 2005 -: 7 :- dishonoured due to insufficiency of fund. Statutory notice was sent by the complainant, no reply was sent. That itself would show that he had nothing to say against the averments contained in that notice. Though a vague plea was raised by the defence that he had not issued the cheque, it was not disputed that Ext.P1 was drawn on the cheque leaf issued by the bank on his account. There was no explanation as to how the cheque leaf happened to reach the hands of the complainant. The evidence given by PW1 that Ext.P1 was issued to him to discharge the debt of Rs.50,000/- could not be effectively controverted by the accused. The learned Magistrate also found that Ext.P1 was issued to discharge the debt/liability as contended by the complainant. All the statutory requirements were duly complied with. As such, conviction for offence under Sec.138 of the N.I.Act should necessarily follow. In the result, this Crl.A. is allowed. The judgment of acquittal of the accused is set aside. The accused is Crl.A.No.1038 of 2005 -: 8 :- found guilty of the offence punishable under Sec.138 of the N.I.Act and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs.50,000/- as compensation and in default he will undergo S.I. for two months. The accused/respondent will appear before J.F.C.M., Vaikom on **18.11.2011** to undergo imprisonment till the rising of the court and to pay the compensation as mentioned above, in default of payment he will undergo S.I. for two months. **N.K.BALAKRISHNAN, JUDGE.** Jvt