Sunil Bava v. Rajeev and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 CRL.A.No. 494 of 2001() ----------------------ST.1103/1998 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... ## PETITIONER/COMPLAINANT: ------------------------------------------- SUNIL BAVA, 35 YEARS, S/O. SING BAVA SAW MILL ROAD, KOORKANCHERY VILLAGE DESOM, THIRISSUR TALUK – REP. BY POWER OF ATTORNEY HOLDER P.J. JOHN 27 YRS., S/O. JACOB, PLANGALANGATH HOUSE NELLIKUNNU DESOM, OLLUKKARA VILLAGE THRISSUR TALUK BY ADV. SRI.V.R.KESAVA KAIMAL RESPONDENTS/ACCUSED/STATE: ---------------------------------------------------- 1. RAJEEV, 34 YEARS, S/O. RAMAKRISHNAN 'REVATHI', CHERAPARAMBIL HOUSE POONKUNNAM, AYYANTHOLE VILLAGE THRISSUR TALUK 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSEUCTOR, HIGH COURT OF KERALA ERNAKULAM - R2 PUBLIC PROSECUTOR SMT. LAKSHMI RANI - R1 BY ADV SRI.K.M.JAMALUDHEEN FOR R.1 SMT.LATHA PRABHAKARAN FOR R.1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V.K.MOHANAN, J. ------------------------------- ## CRL. APPEAL No. 494 OF 2001 ------------------------------Dated this the 19[th] November, 2008. ## JUDGMENT This is an appeal at the instance of a complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, as he is aggrieved with the order of acquittal passed by the court below under Section 255(1) of Cr.P.C in favour of the accused. 2. The case of the complainant is that the accused borrowed a sum of Rs.15,000/- on 15.12.1997 and towards the discharge of the said debt he issued a cheque dated 15.3.1998, which dishonoured when presented for encashment for the reason of insufficiency of funds. According to the complainant, thereafter he caused to sent Ext.P5 notice to the accused intimating him the dishonour of cheque and demanding to pay the amount due to the complainant and as he failed to pay the amount the complainant approached the court by filing complaint in the Chief Judicial Magistrate, Thrissur as S.T.1103/98. On appearance of the accused, the particulars of the complaint were read over and 2 Crl. Appeal 494/01 explained to him to which he pleaded not guilty, which resulted in further trial of the case, during which P.W.1 was examined from the side of the prosecution and marked Exts.P1 to P7. There was no evidence either documentary or oral from the side of the defence. Incriminating circumstances which emerged during the prosecution evidence have been put to the accused under Section 313 Cr.P.C and he denied the same and it was his further case that he had no acquaintance with the complainant and never borrowed any money from him and no cheque was issued. It is also stated that he has not received Ext.P5 notice and also stated that the cheque in question was a cheque issued connected with a kuri transaction with another kuri company. Based upon the rival contentions and pleadings the court below formulated four points for its consideration. Since the accused has denied the receipt of notice, the court below has considered the question whether all the provisions and ingredients under Section 138 of the Negotiable Insruments Act has been proved by the complainant. In answer to Crl. Appeal 494/01 3 the above issue, the court found that the complainant has not complied with the second clause to proviso to Section 138 of the N.I.Act and he has not made a demand for payment of the amount by giving notice in writing to the drawer of the cheque within the prescribed time. Hence, by giving benefit of doubt to the accused, he is acquitted. It is the above order of acquittal challenged in this appeal. 3. I have heard learned counsel for the appellant as well as the first respondent -accused. 4. The learned counsel Mr. Kaimal submitted that in the light of the decision of the Apex Court in C.C.Alavi Haji v. Palapetty Muhammed and another {2007(5) Supreme 277} it can be treated that the notice as contemplated by Section 138(b) of the Negotiable Instruments Act was served on the accused. It is also the case of the counsel that as discussed in paragraph 17 of the said decision, in the present case also the accused has appeared before the court below in pursuance to the service of summons and if the accused 4 Crl. Appeal 494/01 wants to make the payment he would have made the payment. In the above reported case the facts involved is entirely different from the present one. In that case notice was sent in the correct address of the accused but the same was returned with the endorsement that the addressee is in abroad. Therefore notice was proved to be served on the accused. According to the learned counsel the order passed by the court below is highly illegal and liable to be set aside. 5. On the other hand learned counsel for the respondentaccused submitted that no notice was sent in the correct address of the accused and he was forced to appear before the court because of the arrest warrant issued from the court below. Learned counsel invited my attention to the address shown in the complaint as well as in Ext.P7 notice. Thus, according to the counsel the address shown in the notice as well as in the complaint are entirely different one and there was no proper service of notice on the accused in terms of 138(b) of N.I. Act and, therefore, the court below has rightly held that no offence under Section 138 of the N.I. Act is disclosed. Therefore the counsel submitted that the appeal Crl. Appeal 494/01 5 is liable to be dismissed. 6. I have carefully considered the contentions advanced by both the counsel and also perused the records. The amount involved in the cheque in question is about Rs.15,000/- which alleged to have borrowed by the accused on 15.12.1997 and the court below has, without going into the merits of the case, but on the preliminary question regarding the service of notice acquitted the accused. Thus it can be seen that there is no decision on merit with respect to the allegations and claim. Though the complainant has send the notice, the same returned without serving on the accused. The complainant has not taken any steps to establish that the address shown in Ext.P7 is sufficient to serve the same on the accused or the person mentioned is one and the same. On a comparison of the address given in Ext.P7 and in the complaint, it can be seen that in Ext.P7 it is shown as Revathy House, Oppopsite to Petrol Pump but there is no such description in the complaint. It is also stated that street name shown in Ext.P7 is TrichurKunnamkulam Road. But there is no such mention in the address of 6 Crl. Appeal 494/01 the accused in the complaint. In Ext.P7 the place is shown as Punkunnam, Trichur-2. But in the complaint what is stated is Poonkunnam, Ayyanthole Village, Thrissur Taluk. The question to be considered is whether the person mentioned in Ext.P7 and in the complaint is one and the same person and whether the address shown in Ext.P7 is sufficient to serve on the accused. Learned counsel for the appellant submitted that the accused is residing within the limit of Thrissur town, West Police Station. But learned counsel for the respondent-accused submitted that since Poonkunnam is shown as Thrissur-2 it may not be practicable to serve notice on the accused. However, there is no evidence adduced by the complainant to show that the address shown in Ext.P7 is sufficient to serve on the addressee, the accused. In spite of the fact that he was aware of the return of Ext.P7, no step was taken either to summon the postal authorities or any other competent officials to prove the above aspect. It is not the case, where seldom step was taken by the complainant to serve notice on the accused. As there is no decision on merit, it appears to me that 7 Crl. Appeal 494/01 it is just and proper to remit back the matter for consideration of the court below in the light of the above discussion and thereafter come into a conclusion on merits. Learned counsel for the respondent-accused submitted that an opportunity may be given to him to adduce further evidence to substantiate to his contentions. In the light of the above facts and circumstances, the impugned judgment is set aside and the matter is remitted back to the trial court for fresh consideration and the parties are free to adduce further evidence to substantiate their respective contentions. The parties are directed to appear before the court below on 19.12.2008 on which date the court is directed to take up the complaint on file and dispose it of on merits. V.K.MOHANAN JUDGE jj Crl. Appeal 494/01 8 V.K.MOHANAN, J. -------------------------CRL. APPEAL NO: 494 OF 2001 -------------------------- JUDGMENT Dated: 19[th] November, 2008.