Reena Saji v. State of Kerala & Ashly Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **Crl.MC.No.898 OF 2020(B)** **TO QUASH ANNEXURE-A1 COMPLAINT WHICH IS NUMBERED AS CC 202/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA FILED UNDER SECTION 142(a) OF THE NEGOTIABLE INSTRUMENTS ACT** ## **PETITIONERS/ACCUSED:** **REENA SAJI, AGED 42 YEARS W/O.SAJI, PUTHENVEETTIL HOUSE, ARUVITHARA P.O., KOTTAYAM DISTRICT, PIN - 686 122.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 ASHLY JOSEPH, AGED 31 YEARS, 6/978, NANDANAM, THEKKINETH NIRAPPU, CHOTTANIKKARA P.O., ERNAKULAM DISTRICT, PIN - 682 312.** ## **SRI AJITH MURALI-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.01.2020, THE COURT ON 05.02.2020 PASSED THE FOLLOWING:** Crl.M.C.No.898/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.898 of 2020 ----------------------------------------------Dated this the 5[th] day of February, 2020 ## **O R D E R** The petitioner is the accused in the case C.C.No.202/2019 on the file of the Court of the Judicial First Class Magistrate, Thripunithura. 2. The aforesaid case is instituted upon the complaint filed against the petitioner by the second respondent (hereinafter referred to as 'the complainant') for an offence punishable under Section 138 of the Act. 3. Annexure-A1 is the copy of the complaint. The material averments in the complaint are as follows: The complainant and the accused were acquainted with each other. The accused borrowed an amount of Rs.6,00,000/- from the complainant. When the complainant demanded repayment of the aforesaid amount, the accused issued a cheque dated Crl.M.C.No.898/2020 3 30.11.2018 for Rs.6,00,000/- in favour of the complainant in discharge of the liability. The cheque was issued at the residence of the complainant. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant issued a registered lawyer notice to the accused demanding payment of the amount of the cheque. The notice was not received by the accused. It was returned to the complainant with the endorsement “addressee out of India, so returned to sender”. The accused did not pay the amount of the cheque. 4. This petition is filed under Section 482 Cr.P.C for quashing Annexure-A1 complaint and the proceedings pursuant to it pending against the petitioner before the court. 5. Heard learned counsel for the petitioner. 6. Maintainability of Annexure-A1 complaint is challenged by the learned counsel for the petitioner on three grounds: (1) The complaint is bereft of any details regarding the transaction between the complainant and the petitioner. (2) The petitioner Crl.M.C.No.898/2020 4 is residing in Italy for the last twelve years and there was no proper service of the statutory notice on her. (3) At the time of the alleged issuance of the cheque, the petitioner was not in India but in Italy. 7. Learned counsel for the petitioner contended that the date on which the accused borrowed the amount from the complainant is not mentioned in the complaint. Learned counsel would also point out that the circumstances under which the accused borrowed such a huge amount from the complainant are also not mentioned in the complaint. According to the learned counsel, in the absence of such averments in the complaint, it is not maintainable. 8. A complaint for an offence punishable under Section 138 of the Act need not mention the details of the original transaction. There is not even a requirement in law that the complainant shall state in the complaint that there was a subsisting liability. 9. In **M.M.T.C Limited v. Medchil Chemicals and Pharma : AIR 2002 SC 182** , the Apex Court has held as Crl.M.C.No.898/2020 5 ## follows: _“There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability”._ 10. Absence of averments in the complaint regarding the details of the original transaction do not affect the maintainability of the complaint. Therefore, the prayer for quashing the complaint on that ground cannot be allowed. 11. The question whether absence of details regarding the original transaction or the issuance of the cheque would affect the credibility of the evidence adduced by the complainant during the trial is a different matter. It would depend upon the circumstances of each case. 12. The second contention raised by the learned counsel for the petitioner is that statutory notice was not served on the Crl.M.C.No.898/2020 6 petitioner and therefore, the complaint is not maintainable. Learned counsel would submit that the petitioner has been residing in Italy for the last 12 years and the notice sent to the petitioner in the native address is not sufficient. 13. 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 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 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. 14. “Receipt of the notice” by the drawer of the cheque need not be actual receipt of the notice. It could also be deemed Crl.M.C.No.898/2020 7 receipt. Such deemed receipt is envisaged under Section 27 of the General Clauses Act which provides for raising a presumption of service of notice when it is sent to the correct address by registered post. 15. In view of the presumption under Section 27 of the General Clauses Act, when it is stated in the complaint that the 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 notice in terms of Clause (b) of the proviso to Section 138 of the Act stands complied with. It is then for the drawer of the cheque to rebut the presumption about the service of notice and show that he had no knowledge Crl.M.C.No.898/2020 8 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. Muhammed : (2007) 6 SCC 555** ) 16. 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. 17. 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 with an intention to defeat the process of law, the court shall presume service of notice. This 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 Crl.M.C.No.898/2020 9 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 is to be decided during trial. The complaint cannot be thrown out or quashed 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** ). 18. In the aforesaid circumstances, the plea of the petitioner that, the complaint is liable to be quashed on the ground of non-service of statutory notice, cannot be accepted. 19. Learned counsel for the petitioner also submitted that, on the date of issuing the cheque, the petitioner was in Italy. Learned counsel would submit that the passport of the petitioner would prove that, at the time of the alleged issuance of the cheque, the petitioner was not in India. Crl.M.C.No.898/2020 10 20. The plea of alibi is also a matter to be raised and decided during the trial of the case. The petitioner has got no case that for the last 12 years she was continuously residing in Italy and that she had never come to India during that period. Moreover, the date of issuing the cheque is not mentioned in the complaint. It is a matter of evidence, whether on the date of issuing the cheque, the petitioner was in India or in Italy. 21. In the aforesaid circumstances, the complaint is not liable to be quashed on any of the grounds raised by the petitioner. The petition is liable to be dismissed. 22. Learned counsel for the petitioner submitted that the petitioner was in Italy and she had not received any summons from the court and the trial court has issued non-bailable warrant against her. Learned counsel would submit that, when the petitioner comes from Italy, she apprehends arrest by the police and remand by the Magistrate to judicial custody. 23. The petitioner is at liberty to convince the learned Magistrate that she had not received any summons from the court as she was in Italy. If the petitioner appears before the Crl.M.C.No.898/2020 11 trial court and convinces the learned Magistrate regarding nonservice of summons upon her, I am confident that the bail application, if any, filed by the petitioner shall be considered by the learned Magistrate in the proper perspective. I find no sufficient reason to assume that the learned Magistrate will adopt any unusual or improper practice or procedure especially when the offence alleged against the petitioner is bailable. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT IN CC NO.202/2019 FILED BY THE 2ND RESPONDENT AND PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA.** **ANNEXURE A2 TRUE COPY OF THE DETAILS OF ARRIVAL AND DEPARTURE ENDORSED IN THE PASSPORT OF THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE