Raveendran v. Sarojini and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934 ## CRL.A.No. 1891 of 2004 (D) -------------------------CRLP.734/2004 DATED 16-11-2004 SUMMARY TRIAL CASE No.1100/2001 of J.M.F.C., OTTAPALAM APPELLANT/COMPLAINANT: ------------------------ RAVEENDRAN, S/O.GANGADHARAN, KALLINGAL HOUSE, CHUNANGAD AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH ## RESPONDENTS/ACCUSED AND STATE: -------------------------------- 1. K.SAROJINI, "SREE RAMA NILAYAM"., PANNIYANKKARA, PALAZHI, KALLAYI (POST) KOZHIKODE-3. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.REMA.R. R1 BY ADV. SRI.BIJU ABRAHAM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------------------Crl.A.No.1891 of 2004** ## **---------------------------------------Dated this the 01[st] day of January, 2013** ## **JUDGMENT** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 11/10/2004 in Summary Trial Case No.1100 of 2001 of the court of the Judicial Magistrate of the First Class, Ottapalam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that, the accused and her son one Krishnakumar made believe the complainant and his uncle that they will arrange visa for them and thereby received `1,46,000/- from the complainant but the visa was not arranged as promised. Thus, when the complainant demanded back the money, the accused issued Ext.P1 cheque dated 16/12/2000 for Crl.A.No.1891/2004 : 2 : an amount of `1,10,000/- which, when presented for encashment was dishonoured for want of sufficient fund in the account maintained by the accused and according to the complainant though he had caused to send a statutory notice to the accused, no amount was paid and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant himself was got examined as PW.1 and produced Exts.P1 to P5 documents. No evidence, either oral or documentary, was produced from the side of the defence. Based upon the evidence and materials and the contention advanced, the learned Magistrate has framed three points for his consideration. The first point considered was whether the accused had issued Ext.P1 cheque in favour of the complainant for the discharge of the debt as alleged in the complaint and the second point was whether the complainant presented the cheque within the stipulated time and whether the cheque was bounced due to the Crl.A.No.1891/2004 : 3 : insufficiency of the funds in the account maintained by the accused and those points found in favour of the complainant. The third point considered by the learned Magistrate was whether the complainant issued written notice informing the bouncing of the cheque within the stipulated time and whether the accused failed to repay the amount as alleged by the complainant and this point is found against the complainant and in favour of the accused. Accordingly, it was held that, in the present case, the complainant has not shown that, notice of demand, as required under Section 138(b) of N.I. Act, was served on the accused and therefore no offence under Section 138 of the N.I. Act will lie. Consequently, the accused has been found not guilty and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and the consequent acquittal that are challenged in this appeal at the instance of the complainant. 3. I have heard Sri.Santheep Ankarath, learned counsel for the appellant and Sri.Biju Abraham, learned Crl.A.No.1891/2004 : 4 : counsel for the respondent. 4. On the strength of the decision of this Court reported in **Sheela Vs. Gopalakrishnan** [2005(1) KLT 877] and in **Keshi Developers through its Partner Kishore Kumar Garg and Others Vs. Second Additional Civil Judge (J.D.)/Judicial Magistrate and Others** [2011 KHC 331], the learned counsel for the appellant submitted that, in the present case also the statutory notice sent at the instance of the complainant was received by the son of the accused and therefore there is sufficient demand, but the learned Magistrate went wrong in holding that Section 138 of the N.I. Act is not attracted. The learned counsel for the respondent vehemently submitted that the complainant has miserably failed to establish the essential ingredients of Section 138 of the N.I. Act particularly the service of demand notice on the accused as contemplated under Section 138(b) of the N.I. Act. Thus, according to the learned counsel, the reasoning given by the learned Magistrate in support of Crl.A.No.1891/2004 : 5 : his findings under point No.3 are based upon available evidence and materials and therefore, there is no scope for any interference. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondent and I have gone through the judgment of the trial court. 6. In the light of the rival contentions and available evidence and materials on record, the question to be considered is whether the trial court is correct in its finding that the offence under Section 138 of the N.I. Act is not attracted in the present case for the reason that the formal demand notice was not served on the accused. Admittedly, as evidenced by Exts.P4(a), P4(b) and P4(c) documents, the formal demand notice is not served on the accused, but the endorsement contained on Ext.P4(c) acknowledgment card shows that, the same was received by the son of the accused. A reading of proviso (b) to Section 138 of the N.I. Act shows that, in order to attract Crl.A.No.1891/2004 : 6 : penal liability under Section 138 of the N.I. Act, the payee or the holder in due course of the cheque, as the case may be, shall make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within the time stipulated therein. In the present case, it is true as contended by the learned counsel for the appellant that the formal notice was sent in the correct address of the accused. But the said fact itself is not sufficient to hold that there was a formal service of demand notice on the accused. In the present case, as I indicated earlier, the demand notice was received by the son of the accused and there is no positive evidence to show that the son of the accused has communicated the notice so received by him to the accused and the accused was made aware of the formal demand made by the complainant. In this juncture, it is pertinent to note that, as rightly observed by the learned Magistrate, no evidence is adduced from the side of the complainant, other than the documents which I Crl.A.No.1891/2004 : 7 : mentioned above, to show that a formal demand was actually served on the accused. The postman concerned or any other postal authorities could have been examined to show that a notice was served on the accused or to substantiate the reason as to why the notice was not served on the accused, though her address has been shown correctly on the postal cover. If the complainant has succeeded in adducing any evidence to justify the reason for not serving the notice on the addressee-namely the accused and served the same on the person other than the addressee the conclusion would have been a different one. In the decision reported in **Sheela Vs. Gopalakrishnan** [2005(1) KLT 877], this Court in paragraph 10 has specifically found that the accused has stated that he came to know the fact of the payment of the amount and dishonour of the cheque only after going through Ext.P4 notice received by his wife and on the basis of the above facts this Court held that, the complainant has issued notice as contemplated and the Crl.A.No.1891/2004 : 8 : same had been received by the accused. But in the present case there is no such evidence or material. The other decision cited by the learned counsel for the appellant in **Keshi Developers through its Partner Kishore Kumar Garg and Others Vs. Second Additional Civil Judge (J.D.)/Judicial Magistrate and Others** [2011 KHC 331], is a decision in a proceeding under Section 482 of Cr.P.C. when the accused approached the court for quashing the procedure at the threshold. In the said decision also Uttarakhand High Court has held that the service of notice to drawer is a question which can be decided during the trial and the complaint cannot be dismissed at the threshold on ground that there was no proper service of notice and it was further held that once notice has been sent by registered post with acknowledgment due, on correct address, then it must be presumed that the service has been made effectively. The above observation and finding, as I indicated earlier, before the stage of evidence and in the Crl.A.No.1891/2004 : 9 : present case, though the evidence stage is over, the complainant has miserably failed to prove that there is proper service of notice of demand on the accused. In the absence of any evidence to prove the service of notice, it cannot be said that, the complainant has complied with the requirement under Section 138 proviso (b) of the N.I. Act. If that be so, the learned Magistrate is correct in his finding that no offence under Section 138 of the N.I. Act is attracted against the accused. Thus, according to me, the finding of the court below is perfectly correct and legal and it cannot be treated as perverse or illegal so as to interfere with the order of acquittal recorded in favour of the accused. 7. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, “In exceptional cases where there are compelling circumstances and the judgment Crl.A.No.1891/2004 : 10 : under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the dictum laid down by the Apex Court in the decision cited supra, I find no ground to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails. In the result, this appeal is dismissed accordingly. ## **V.K.MOHANAN, JUDGE** skj