Sathyaseelan v. Raveendran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934** ## **CRL.A.No. 266 of 2009 ( )** **-------------------------** **(AGAINST THE JUDGMENT IN ST.127/2007 of J.M.F.C. - II, KARUNAGAPPALLY, DTD.17.11.2008)** ## **APPELLANT(S)/COMPLAINANT:** **------------------------** **SATHYASEELAN, S/O. NARAYANAN, KADAKKOTTU HOUSE, K.S. PURAM.P.O PUNNAKKULAM MURI, ADINAD VILLAGE, KARUNGAPALLY.** **BY ADV. SRI.N.VIMALAN** ## **RESPONDENT(S)/ACCUSED:** **----------------------** **1. RAVEENDRAN, S/O. KUNJIKRISHNAN, KOYIKKALETHU VEEDU** **KOMALLOOR.P.O, KARIMULAKKAL MURI** **CHUNAKKARA VILLAGE, ALAPPUZHA DISTRICT.** **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.** **BY ADV. SRI.V.V.RAJA FOR R1 BY ADV. SRI.M.T.SURESHKUMAR BY ADV.SMT.LALIZA T.Y., GOVERNMENT PLEADER FOR R2** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **CRL.A.No. 266 of 2009** ## **APPENDIX** **EXHIBITS FOR THE APPELLANT :** **ANNEXURE I : CERTIFIED COPY OF POSTAL RECEIPT NO.RLADA 2373** **ANNEXURE II: CERTIFIED COPY OF DAILY ACCOUNTING SHEET OF POST OFFICE DATED 6.5.2005.** **ANNEXURE III: CERTIFIED COPY OF DEPOSITION OF PW3 IN ST NO.127/2007.** **EXHIBITS FOR THE RESPONDENTS : NIL** ## **//TRUE COPY** **P.S.TO JUDGE** **ami/** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 266 of 2009** ## **----------------------------------------** Dated this the 13[th] day of July, 2012 ## **J U D G M E N T** 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 17.11.2008 in S.T.No. 127 of 2007 of the court of the Judicial First Class Magistrate-II, Karunagappally 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 approached the complainant and borrowed an amount of Rs.2,50,000/- and towards the discharge of the said liability, issued Ext.P1 cheque which when presented for encashment, dishonoured for want of sufficient fund and thereafter, statutory notice was issued to the accused intimating about the dishonour of the cheque and demanding to pay back the amount covered by the dishonour of cheque, but the accused did not pay the amount and therefore, he had Crl.A.No. 266 of 2009 :-2-: committed the offence punishable under Section 138 of the N.I.Act. 3. During the trial of the case, on behalf of the complainant, to prove the case of the complainant, Pws.1 to 4 were examined and Exts.P1 to P5 were marked. The trial court has finally held that mandatory provisions are not complied with by the complainant and it cannot be said that the complainant has complied with all the statutory formalities in filing a complaint under Section 138 of the N.I.Act. On the basis of the above finding, the accused is acquitted under Section 255(1) of the Cr.P.C. 4. Learned counsel for the appellant vehemently submitted that the complainant could not produce the original of the postal receipt and acknowledgment card and therefore, Exts.P4 and P5 were produced and examined PW3 to prove the factum of service of statutory notice on the accused. It is also the submission of the learned counsel that though the complainant has produced photostat copies of the postal receipt and acknowledgment card, the learned Magistrate was not prepared to accept the same as the same are only Crl.A.No. 266 of 2009 :-3-: photostat copies. Thus, the learned counsel, after taking me through the deposition of PW3, submitted that Ext.P5 would show that the notice is served on the accused. Thus, according to the learned counsel, the findings of the court below are against the evidence which are in favour of the complainant and therefore, the findings are liable to be set aside and the accused is liable to be convicted. 5. On the other hand, the counsel for the respondents submitted that even as per the deposition of PW3, there is no convincing evidence to show that statutory notice was served on the accused which is a condition precedent to invoke Section 138 of the N.I.Act. Therefore, there is no merit in the appeal and hence the same is only to be dismissed. 6. I have carefully considered the submission made by learned counsel for the appellant and the respondents and I have gone through the judgment of the trial court and also the materials made available along with the appeal memorandum. 7. In the light of the rival contentions advanced and in the Crl.A.No. 266 of 2009 :-4-: light of the evidence and materials referred to in the judgment, the question to be considered is whether the appellant has made out a prima facie case to interfere with the finding of the court below regarding the compliance of proviso (b) to Section 138 of the N.I.Act. From the arguments advanced by the learned counsel for the appellant and in the light of the schedule to the judgment which is impugned, it can be seen that the documentary evidence i.e., the postal receipt and acknowledgment to prove the service of notice on the accused are conspicuously absent in the present case. Though the counsel for the appellant submitted that the complainant has produced photostat copies of those documents in the trial court and the learned Magistrate was not prepared to accept the same, the appellant has no claim that against the denial of adducing evidence, even though photostat copies, timely legal action is taken by the complainant. 8. I have gone through the deposition of PW3 which the appellant has produced along with the appeal memorandum. On a reading of the chief examination of PW3, it can be seen that PW3 is a Crl.A.No. 266 of 2009 :-5-: Postal Assistant and he had appeared before the court as authorised by the Postal Superintendent. It was also seen that on 6.5.005, the postal article bearing No.RLOBA 2373 was sent from Komallur Post Office to Mavelikkara in the name of one Raveendran, Cheerankara Village, Karinalloor Muri. During the cross-examination, he had stated that as per Ext.P5, he cannot say that the postal articles mentioned therein were registered in the name of the accused. In this juncture, it is relevant to note that PW3 is not the concerned Postman. In the evidence of PW3, what he has stated is that on a perusal of Ext.P5, the articles mentioned above are sent in the name of one Raveendran to the Komallur Post Office on 6.5.2005. The address of the accused in that complaint is shown as Raveendran aged 55 years, S/o.Kunjikrishnan, Koyikkara Veedu, Karinalloor Muri, Komallur Post Office, Chunakkara Village, Alappuzha district. But, what PW3 stated is article was sent in the name of one Raveendran, Cheerankara Village,Karinalloor Muri, Komallur Post Office. Learned counsel for the appellant submitted that the village name is mistakenly typewritten Crl.A.No. 266 of 2009 :-6-: and there is no such village in the Alappuzha District as Cheerankara. The question considered by the trial court, which is reconsidered by this Court, is whether the complainant has succeeded in establishing that he had complied with the statutory requirement of serving notice on the accused in terms of Section 138(b) of the N.I.Act. It was for the complainant to prove the above facts beyond reasonable doubt. The evidence of PW3, who is not a Postman concerned is not sufficient to hold that statutory notice was served on the accused, especially when the description given by PW3 regarding the address of the accused is not tallying with the address of the accused shown in the cause title of the complaint. Therefore, there is no convincing evidence to show that the statutory notice was served on the accused. If that be so, even if this appeal is further entertained, there is no scope for any interference with the findings of the court below and the order of acquittal recorded by the learned Magistrate. The Apex Court in the decision reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** [2012(4) Supreme 72] reiterating the limits of Crl.A.No. 266 of 2009 :-7-: the appellate court has held that the appellate court can interfere with the order of acquittal only on exceptional circumstances and only when the judgment sought to be impugned is found to be perverse and the appellate court should bear in mind presumption of innocence of accused and that trial court's acquittal bolsters presumption of his innocence. Thus, on examination of the facts and circumstances involved in the case and in the light of the dictum laid down by the Apex Court in the decision cited supra, I am of the view that the appellant has miserably failed to make any exceptional case or substantial reason to interfere with the finding of the court below and the acquittal recorded in favour of the accused. Therefore, there is no merit in this appeal and accordingly, the same is dismissed. ## **V.K.MOHANAN,Judge.** MBS/ Crl.A.No. 266 of 2009 :-8-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No. 266 of 2009 :-9-: ## **JUDGMENT** Dated:11.11.2011