Somy Mathew v. State of Kerala and Jijo Mathew

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941** ## **CRL.A.No.1646 OF 2005** **AGAINST THE ORDER/JUDGMENT IN CC 703/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA** ## **APPELLANT/COMPLAINANT:** **SOMY MATHEW SON OF M.M.MATHEW, MADATHIL HOUSE, EDAPPADY P.O.,, BHARANANGANAM, KOTTAYAM.** **BY ADVS.** **SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SRI.G.RENJITH** ## **RESPONDENTS/ACCUSED AND STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 JIJO MATHEW, S/O.MATHEW KURIAN ERUMALAYIL HOUSE, KONNATHADY VILLAGE, PANICKANKUDY P.O., UDUMBANCHOLA TALUK, IDUKKI, NOW AT CENTRE FOR DEVELOPMENT EDUCATION, PKM COMPLEX, MISSION SCHOOL JUNCTION, PALAKKAD- 678 014.** CRL.A.No.1646 OF 2005 2 **BY ADV.** **R1 BY PUBLIC PROSECUTOR** **SRI. SUMODH. P.N. PUBLIC PROSECUTOR. SRI. RAJITH MARK (AMICUS CURIAE)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1646 OF 2005 3 ## **JUDGMENT** The complainant in C.C.No.703 of 2002 on the files of Judicial First Class Magistrate Court, Pala is the appellant. He is aggrieved by the order of acquittal of accused in the private complaint filed under Section 138 of Negotiable Instrument Act, 1881(for short ‘the NI Act’). 2. The case of the appellant in the Court below is that he received from accused Ext.P1 and P2 cheques drawn for Rs.30800/- and Rs.80,000/- respectively dated 16.03.2002 and 22.03.2002 in discharge of legally enforceable debt incurred by the latter. On presentment of the cheques, they were dishonoured by the drawee bank for want of sufficiency of funds and thereupon demand notice was issued to the accused seeking discharge of debt due under the cheques. Ext.P7 notice was however returned “unclaimed” and even though CRL.A.No.1646 OF 2005 4 the appellant waited for the accused to discharge the liability, no response was received and therefore, he lodged the complaint before the trial Magistrate. 3. The accused after having appeared on summons contested the case denying the charge under Section 138 of the NI Act and the complainant thereupon examined himself as PW1 and marked Ext P1 to P11. The accused in answer to questions put to him under Section 313 of Cr.P.C. set up a defence that though he signed Ext.P1 and P2, they were only blank cheques when delivered to the appellant. It was said that parties had agreed to start a joint business and as part of their mutual understanding, upon the demand of appellant the accused issued two blank cheques as security. He denied having received demand notice and alleged that it was not sent in his correct address. Anyway, no defence evidence was CRL.A.No.1646 OF 2005 5 adduced even though sufficient opportunity was given. 4. The court below, in fact, accepted the prosecution claim on merits and found that the cheques were issued by the accused in discharge of legally enforceable debt for a sum of Rs.1,10,800/- incurred by the accused. After analyzing the testimony of PW1, the Court below believed the case of the appellant that the accused was indebted to the appellant and in discharge of legally enforceable debt incurred by the latter, the cheques were issued. The defence contention that what were in fact issued were blank cheques, was turned down. On the whole, the trial Magistrate held in favour of the appellant that the accused issued Ext.P1 and P2 cheques in discharge of legally enforceable debt. 5. In fact, in this case the accused/ second respondent did not appear despite service of notice on him. Therefore, CRL.A.No.1646 OF 2005 **==> picture [8 x 9] intentionally omitted <==** Adv.Sri Rajith Mark was appointed as Amicus Curiae to represent the accused. I heard the learned Amicus Curiae and perused the written submissions made by him. I heard the learned counsel for the appellant also. 6. On re-appreciating the evidence given by PW1 and evaluating the whole circumstances on record, I am fully satisfied that the finding of the trial Magistrate holding the prosecution claim as being proved does not require any interference. The issue of Ext.P1 and P2 cheques in discharge of legally enforceable debt has been amply proved and therefore that part of the impugned judgment requires only to be confirmed. 7. The short but material question argued before me by the learned counsel for the appellant is that the finding of the Court below that demand notice was not sent in the correct CRL.A.No.1646 OF 2005 7 address of the accused is factually and legally wrong. It is a fact that demand notice was sent to the residential address of the accused in Idukki. The notice was returned unclaimed with an endorsement that the addressee left the house and was available in his business address in Palakkad. There is no dispute that the residential address of the accused in Idukki as well as his business address in Palakkad are the places of address where he could be rightly traced out. The Court below took the view that since the appellant was aware of the address of the accused at Palakkad, he ought to have chosen to send the demand notice in the known address at Palakkad when the endorsement over the postal cover itself indicated that he was staying in the Palakkad address. In this respect, a decision of the High Court of Kerala reported in **Anil Raj v. M/s Integrated Finance** [I.L.R. 2005(2) Kerala 68] was CRL.A.No.1646 OF 2005 8 relied on to contend that the demand notice should nevertheless have been sent in the known address of the drawer. In that decision, there is an observation to the effect that when the demand notice happens to return for an act not attributable to the sendee, law casts duty on the sender to ensure that the notice is sent in the known address of the drawer of the cheque wherever he is. 8. The learned counsel for the appellant in this respect submitted that decision in **C.C. Alavi Haji v. Palapettu Muhammed** [(2007) 6 SCC 555] laid down the law that the Court should adopt a liberal interpretation of Section 138 (b) of the NI Act, giving benefit of the provision to the complainant. Another decision of this Court in **Chungath Medical Stores and Ors. v. K.M. Elias and Ors.** [MANU/KE/1959/2012] was also relied on. The learned CRL.A.No.1646 OF 2005 9 Amicus Curiae, adverting to these decisions submitted that the main concern of the Court should be to see that the demand notice sent to the drawer of the cheque was in the correct address. 9. It is no longer in dispute that the permanent residence of the accused is in Idukki. The accused does not have a contrary case even though he contended that he was on the date of issue of demand notice, staying at his business address in Palakkad. In other words, the accused himself concedes both to be his correct addresses. 10. Therefore, the question for consideration is whether the demand notice sent to the residential address in Idukki will meet legal requirement under Section 138(b) of the NI Act. In my opinion, having due regard to the facts and circumstances of the case, the legal requirement can be said to CRL.A.No.1646 OF 2005 10 be satisfied. Looking at the testimony given by PW1, there is no indication that the appellant was ever aware at the time of issue of demand notice that the accused was occupying the business address in Palakkad. Quite naturally therefore, he sent the notice in Idukki address which however, returned as if the addressee was not available for service. I then fail to understand how the return of demand notice from Idukki address of the accused could entitle the accused to contend that the demand notice was not directed to his correct address. In my view, this contention does not merit acceptance primarily for the reason that there is no evidence to prove that the appellant was aware of the address at Palakkad. Even if it is assumed that he was aware also, there is nothing to indicate that the appellant purposefully kept the accused out of service with any sinister motive. CRL.A.No.1646 OF 2005 11 11. This is a case where presumption of deemed service shall be drawn insofar as there is evidence establishing that the address of the accused in Idukki was his permanent address. It was up to the accused to have furnished with the postal authorities at Idukki, his changed or current address in Palakkad where he could have been traced out, if at all he had temporarily shifted from idukki. In the absence of such information being furnished with the postal authorities, the appellant cannot be faulted for not repeating the demand notice in the Palakkad address. In any view of the matter, the decision relied on by the trial Magistrate did not apply to the facts of this case at all. On the other hand, being alive to the clear legal position canvassed by the learned counsel for the appellant as well as the learned Amicus Curiae, I am of the opinion that appellant has succeeded in proving that demand CRL.A.No.1646 OF 2005 **==> picture [15 x 8] intentionally omitted <==** notice was sent in the correct address of the accused and consequently, the service on accused shall be deemed to be presumed notwithstanding that it returned unclaimed. This is especially since there is nothing made out from the evidence that appellant had any sinister motive to keep the accused out of service. In short, I am satisfied that the accused failed to substantiate that he was subjected to prejudice on account of the alleged failure to effect service in his correct address. This is not a case where the accused has shown any preparedness to discharge the proved liability under Exts.P1 and P2 cheques. On the other hand, he denied his liability contending that cheques were issued in a different transaction. This defence was rightly rejected by the court below. There is therefore no point in accused submitting that he is aggrieved by the alleged non service of notice. CRL.A.No.1646 OF 2005 **==> picture [15 x 9] intentionally omitted <==** 12. Thus disagreeing with the view taken by the Court below, I hold that the appellant proved that demand notice was sent in the correct address of the accused and therefore the presumption of deemed service referred to in Section 27 of the General Clauses Act, 1897 is attracted to the facts of the case. The impugned order of acquittal passed by the trial Magistrate is therefore liable to be reversed and the accused is found guilty of offence punishable under Section 138 of the NI Act. In the result, appeal succeeds and reversing the order of acquittal, the second respondent / accused is convicted of offence punishable under Section 138 of NI Act and sentenced to undergo a day's imprisonment till the rising of court. He is directed to pay cheque amount of Rs.1,10,800/- to the appellant as compensation under Section 357(3) of Code of CRL.A.No.1646 OF 2005 14 Criminal Procedure, failing which the accused shall undergo simple imprisonment for six months. **SCS** **Sd/T.V.ANILKUMAR JUDGE**