VIJUNA V.K v. MITHUN.K and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **Crl.Rev.Pet.No.1264 OF 2019** **AGAINST THE JUDGMENT IN CRA 150/2018 DATED 31-10-2018 OF ADDITIONAL DISTRICT COURT KOZHIKODE-III** **AGAINST THE JUDGMENT IN CC 753/2016 DATED 26-03-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V,KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **VIJUNA.V.K AGED 37 YEARS W/O. JISHITH, R.S.A/10/454A, SAI KRIPA, NEAR THALAPPAN VISHNU TEMPLE, OLAVANNA P.O, KOZHIKODE-673 025** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS/COMPLAINANT:** **1 MITHUN.K AGED 30, S/O.LEELA KRISHNAN, KUZHIPPILLI HOUSE, KOZHIKKODANKUNNU, OLAVANNA P.O, KOZHIKODE-673 025 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM – 682 018** **R1 BY ADV.SMT.K.K.PREETHA R1 BY ADV.SRI.R.K.PRASANTH SRI C N PRABHAKARAN-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-12-2019, THE COURT ON 09-12-2019 PASSED THE FOLLOWING:** Crl.R.P.No.1264/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1264 of 2019 ---------------------------------------------Dated this the 9[th] day of December, 2019 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.753/2016 on the file of the Court of the Judicial First Class Magistrate-V, Kozhikode. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted her thereunder and sentenced her to undergo simple imprisonment for a period of three months and also directed her to pay an amount of Rs.3,50,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Crl.A.No.150/2018 before the Crl.R.P.No.1264/2019 3 Court of Session, Kozhikode challenging the conviction entered against and the sentence imposed on her by the trial court. The appellate court confirmed the conviction of the petitioner under Section 138 of the Act but modified the sentence of imprisonment to imprisonment till the rising of the court and imposed a fine of Rs.3,50,000/- on the petitioner and in default of payment of fine, to undergo simple imprisonment for a period of three months. The petitioner challenges the concurrent verdicts of guilty and conviction passed against her by the courts below and the sentence imposed on her by the appellate court. 4. Heard learned counsel for the petitioner and also the first respondent. 5. The case of the complainant is as follows: The complainant and the accused were known to each other. The husband of the accused had received a total amount of Rs.4,50,000/- from the complainant in instalments on the promise that he would sell the Scorpio car in his possession to the complainant, after repairing the same. However, the husband of the accused could not sell the car to the complainant Crl.R.P.No.1264/2019 4 as promised by him. The husband of the accused returned an amount of Rs.1,00,000/- to the complainant. The accused undertook the liability of the husband for the balance amount of Rs.3,50,000/- and she issued a cheque dated 25.11.2015 for that amount to the complainant in discharge of the liability. An agreement dated 05.11.2015 had also been executed in relation to the transaction. 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 sent Ext.P3 lawyer notice dated 15.03.2016 in the address of the accused but it was returned as 'unclaimed'. The accused did not pay the amount. 6. During the trial of the case, PW1 to PW3 were examined and Exts.P1 to P6 documents were marked on the side of the complainant. DW1 was examined on the side of the accused. 7. When the complainant was examined as PW1, he gave evidence in tune with the case set up by him in the complaint. He gave evidence that, towards the amount of Rs.3,50,000/- due Crl.R.P.No.1264/2019 5 from her husband, the accused signed, executed and issued Ext.P1 cheque to him. PW2, a friend of the complainant, was also examined to prove the execution and issuance of Ext.P1 cheque by the accused to the complainant. He has given evidence corroborating the testimony of PW1. 8. The plea of the accused is that she had not issued Ext.P1 cheque to the complainant but the complainant had misused the cheque which he had got from her husband. 9. The husband of the accused was examined as DW1. He has given evidence that there was transaction between him and the complainant with regard to the car. He would state that he had borrowed Rs.3,00,000/- from the father of the complainant on the condition that he would pay interest @ 3% per annum. He has also given evidence that he had given two blank stamp papers and a blank cheque of his wife to the father of the complainant as security. DW1 further stated that the sale of the car with the complainant did not take place. Meanwhile, the complainant was admitted in a hospital due to some heart disease. Then the father of the complainant demanded money Crl.R.P.No.1264/2019 6 and he paid the whole amount due to the father of the complainant. But, he did not get back the documents given to the father of the complainant. DW1 admitted that Ext.P1 cheque bears the signature of his wife. 10. Rather than supporting the case of the accused, the evidence of DW1 supports the case of the complainant to some extent. DW1 has admitted the transaction with the complainant, in relation to the car. His evidence is that he had borrowed amount from the father of the complainant and he had given a signed blank cheque of his wife to the father of the complainant as security in that transaction. It is also his plea that he repaid the amount to the father of the complainant. At the same time, the accused has not produced any receipt or other document showing payment of any amount to the father of the complainant. 11. The signature in the cheque is admitted by the accused. There is the evidence of PW1 and PW2 regarding the execution of the cheque by the accused and delivery of it by her to the complainant. In the absence of any reliable evidence Crl.R.P.No.1264/2019 7 adduced by the accused to prove that her signed blank cheque had been given to the father of the complainant as security for the amount borrowed by her husband, the evidence of PW1 and PW2 can be accepted as reliable and trustworthy. The trial court as well as the appellate court has analysed the evidence in the case in the correct perspective and reached the correct conclusion. I find no impropriety, illegality or perversity in the appreciation of evidence by the courts below. 12. It is true that the accused had issued the cheque to the complainant not in discharge of any amount due from her to the complainant. What is proved is that she had drawn and delivered the cheque to the complainant in discharge of the liability of her husband to the complainant. The fact, that the accused had drawn and delivered the cheque to the complainant in discharge of the amount due from her husband to the complainant and not in discharge of any amount due from herself, does not mean that the offence under Section 138 of the Act is not attracted. Cheque drawn and issued by a person to the complainant, in discharge of the debt owed by another person to Crl.R.P.No.1264/2019 8 the complainant, comes within the purview of Section 138 of the Act (See **Anil Sachar v. M/s Sree Nath Spinners : AIR 2011 SC 2751, Alexander v. Joseph Chacko : 1993 (2) KLT 326** , **Komalam v. Mohanakumar: 2009 (3) KHC 269 : 2009 (3) KLT 263, Gopi v. Sudarshanan: 2002 KHC 479 : 2002 (2) KLT 606** and **Alex P.Oommen v. K.S.F.D.C : 2012 (4) KHC 126)** . 13. Learned counsel for the petitioner contended that the complainant had alleged that Ext.P5 agreement was executed by the accused with regard to the transaction but the aforesaid agreement has not been proved by the complainant. Of course, DW1 denied the signature in Ext.P5 agreement. He also gave evidence that Ext.P5 agreement does not bear the signature of his wife. Even if it is accepted that the complainant has not proved execution of Ext.P5 agreement by the accused, it does not in any manner affect the credibility of the case set up by the complainant. The reason is that DW1 admitted the transaction between him and the complainant in relation to the car. 14. Learned counsel for the petitioner also contended that Crl.R.P.No.1264/2019 9 the complainant had not sent the statutory notice to the accused in her correct address. It is pointed out that the address of the accused shown in Ext.P3 lawyer notice sent by the complainant is not the address of the accused which is shown in Ext.P5 agreement. In this context, the evidence of DW1 is very much relevant. He has stated that his wife was residing in her house and she used to come to his house only during Saturdays. Ext.P3 notice was sent by the complainant to the accused in the address of her husband. The complainant cannot be found fault with for sending the notice to the address of the house where she was residing with her husband. It cannot be found that the complainant did not send the notice in the correct address of the accused. 15. Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. 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 Crl.R.P.No.1264/2019 10 stands complied with. Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act would be attracted. 16. On a query made by this Court, whether the accused had received summons in the case from the trial court with a copy of the complaint, learned counsel for the petitioner answered in the affirmative. In **C.C.Alavi Haji v. Palapetty Muhammed : (2007) 6 SCC 555** , the Supreme Court has held as follows: _“Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service_ Crl.R.P.No.1264/2019 11 _of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act”._ (emphasis supplied) In the light of the decision referred to above, the contention of the petitioner regarding non-service of notice on her, does not deserve consideration. 17. There is also no merit in the contention of the learned counsel for the petitioner that Ext.P3 notice does not contain particulars of the transaction and therefore, it is defective. The notice of demand for payment of the amount of the cheque need not state the nature of the liability or particulars of the transaction. 18. In the aforesaid circumstances, I find no reason to interfere with the findings entered by the courts below with regard to execution of the cheque by the accused and delivery of it by her to the complainant in discharge of the amount due from her husband to the complainant. The conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed. Crl.R.P.No.1264/2019 12 19. The appellate court has shown maximum leniency in the matter of sentence and reduced the substantive sentence of imprisonment awarded by the trial court to imprisonment till the rising of the court. There is no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate court. 20. The revision petition lacks merits and it is liable to be dismissed. Consequently, the revision petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/07/12/2019