Kerala High Court
Sony Jacob vs P.N. Shaji on 1 February, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933
CRA.No. 683 of 2005 ( )
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AGAINST THE ORDER/JUDGMENT IN CC.134/2003 of J.M.F.C.-I,
SULTHANBATHERY
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APPELLANT(S)/COMPLAINANT::
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SONY JACOB, S/O. JACOB,
R/O. THAZHATHAKUDY VEEDU, MYLAMBADI P.O.
SULTHAN BATHERY, WAYANAD DISTRICT, KERALA STATE.
BY ADV. SRI.GEORGE ABRAHAM
RESPONDENT(S)/ACCUSED & STATE::
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1. P.N. SHAJI, S/O. P. NARAYANAN,
R/O. PARAVIKODE VEEDU, KENICHIRA P.O.
SULTHAN BATHERY, WAYANAD DISTRICT, KERALA STATE.
2. STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
COCHIN-682 031.
R1 BY SRI.T.G.RAJENDRAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
N.K.BALAKRISHNAN, J.
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Crl.A. No.683 of 2005
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Dated this the 1st day of February 2012
J U D G M E N T
The complainant is the appellant. The complaint filed by her against the respondent alleging offence under Sec. 138 of the Negotiable Instruments Act ended in acquittal under Sec.255(1) Cr.P.C. This appeal is filed challenging that verdict of acquittal.
2. The case of the complaint is that the accused had borrowed a sum of Rs. 5 lakhs on 04/05/2002 agreeing to repay the same within 3 months. He did not repay the amount. To discharge that debt Ext.P1 cheque was issued. When presented for collection it was dis-honoured on the ground of insufficiency of fund. On receipt of the intimation from the bank, lawyer notice was sent to the accused. He received the notice on 04/02/2003 but he failed to repay the amount. Hence the complaint was filed.
Crl.A. No.683 of 2005 -: 2 :-
3. The complainant got herself examined as PW1 and Exts.P1 to P8 were marked. Two witnesses were examined on the side of the accused as DW1 and DW2. It was contended by the accused that Ext.P1 was not executed by him to discharge any debt/liability and that the case was foisted against him by misusing his signed blank cheque leaf. That plea was negatived by the learned Magistrate.
4. It was found by the learned Magistrate that Ext.P5, intimation issued by the bank would show that Ext.P1 was bounced on the ground of insufficiency of funds. But it was found that instead of sending a notice by registered post, the complainant was stated to have sent the notice under certificate of posting. Though a reply was stated to have been sent, the advocate who sent Ext.P8 reply notice stated that the said reply was sent as instructed by one Sivan Master, the brother-in-law of the complainant and not as per the instruction given by the accused. The learned Magistrate found that there is no acceptable Crl.A. No.683 of 2005 -: 3 :- material to prove the service of the demand notice. Hence the accused was acquitted.
5. The learned counsel for the complainant/appellant would submit that the learned Magistrate should not have relied upon the evidence given by DW1 to hold that Ext.P8 reply notice was not sent as instructed by the accused. What is required under the Proviso (b) to Sec.138 of the N.I. Act is a notice intimating the factum of dis-honour to the drawer of the cheque and it does not prescribe the mode of sending of notice and since the notice in question was sent by certificate of posting it should have been found by the court below that the addressee had actually received the notice and as such the learned Magistrate should have found that there was due compliance of the mandatory requirements of Sec.138 of the N.I. Act. The learned counsel for the accused would resist the aforesaid submission pointing out that there was no justifiable reason for the complainant not to send the notice by registered Crl.A. No.683 of 2005 -: 4 :- post, that too, when the cheque in question was for Rs.5 lakhs. It is contended that there is no guarantee that a notice or letter was in fact sent to the addressee nor can there be any presumption of service of notice when it is sent under certificate of posting. The learned counsel further submits that there is no reason to discard the evidence given by DW1, who has fairly admitted that the reply was sent not under the instruction of the accused but as instructed by Sivan Master mentioned earlier. Therefore, according to the accused there is no proof of compliance of the Proviso (b) to Sec.138 of the N.I. Act. The learned counsel for the accused submits that the finding entered by the learned Magistrate that Ext.P1 was issued in discharge of a legally enforceable debt is unacceptable. In short, the learned counsel for the accused supports the judgment of acquittal.
6. The points for consideration are:
Crl.A. No.683 of 2005 -: 5 :-
1.Whether Ext.P1 was issued in discharge of a legally enforceable debt ?
2. Whether complainant made a demand for the payment of the cheque amount by giving a notice in writing to the accused, the drawer of the cheque within the time prescribed ?
3. Whether the judgment of acquittal passed by the learned Magistrate is liable to be interfered with ?
Point No.1:-
It was stated by PW1, the complainant that a sum of Rs. 5 lakhs was borrowed from her by the accused on 04.05.2002 agreeing to repay the same within three months and when the complainant demanded for return of money, Ext.P7 cheque was signed and issued by the accused. The accused made a total denial of the case set-up by the complainant. It was contended by the accused that his signed blank cheque leaf was in the possession of one Sivan Master who is the brother-in-Law of the complainant and Crl.A. No.683 of 2005 -: 6 :- making use of that cheque leaf the case was filed against the accused. It was also contended by the accused that he had borrowed only Rs.1 lakh from Sivan Master mentioned above and that borrowal was had in 1999 in connection with his toddy business and at that time his blank cheque leaves were given by him to Sivan Master as security. It was contended by the accused that he had paid the sum due to Sivan Master but his signed cheque leaves were not returned by Sivan Master. No notice was sent by him demanding return of the cheque leaves nor was any other action taken by him in that matter. The learned Magistrate has meticulously analysed the evidence given by DW1 and DW2 ( his partner in the toddy business). In fact DW2 was found to be more interested and loyal to the accused. The evidence would show that DW2 was conducting partnership business along with the accused for about 8 years. Because of the inherent improbability in the case suggested by the accused and spoken to by DW2, the learned Magistrate has Crl.A. No.683 of 2005 -: 7 :- rightly rejected the evidence given by DW2 as unworthy of credence. The evidence given by PW1 that she had lent money and it was to discharge that debt, Ext.P1 cheque was issued by the accused is found to be true and acceptable.
The finding to that effect entered by the court below is confirmed.
Point Nos.2 and 3 :-
7. Ext.P7 is the certificate of posting, relied upon by the complainant to contend that Ext. P4 notice was sent under certificate of posting. In Ext.P7, the postal seal of Sultan Batheri Post Office, bearing the date 01.02.2003 is seen. The address of the accused is shown therein. One unsigned endorsement is there to effect that one article was received on that day. It does not contain the signature or initial of the post master. What actually was the article stated to have been received in the post office for sending it to the addressee is not clear from the evidence. The complainant does not know anything about the same. The Crl.A. No.683 of 2005 -: 8 :- clerk of the Advocate who must have sent it by certificate of posting was not examined. The complainant contends that there was no reason to send the notice by certificate of posting instead of sending it by registered post.
8. As stated earlier the evidence given by DW1 is that Ext.P8 reply was not sent by him as instructed by the accused but only as instructed by the person who went to his office along with Sivan Master. DW1 has further asserted that Sivan Master is his class mate and was known to him for about 20 years and Sivan master used to go to DW.1's office, the defence contends. The learned counsel for the complainant would submit that even though DW1, the Advocate has chosen to betray his client by giving such evasive statement, still it has to be presumed that Ext.P8 was sent only as instructed by the party mentioned in Ext.P8. This contention has been countered by the learned counsel for the accused who would submit that it is not uncommon that when a reply is to be sent by the wife, the Crl.A. No.683 of 2005 -: 9 :- husband may take the notice to the Advocate for sending a reply. Similarly the father may take the papers to the Advocate to send a reply or to send a notice on behalf of his daughter/son. According to the learned counsel it is usually done out of mutual trust and confidence. Be that as it may, the evidence given by DW1 did inspire confidence in the mind of the Court. The learned Magistrate had the advantage of assessing the evidence correctly. After thorough scrutiny of the evidence, I find no reason to hold otherwise.
9. The crucial aspect is whether there was compliance of proviso (b) to Sec.138 of N.I.Act, which only says that the payee or the holder in due course has to make a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque. Learned counsel for the appellant would submit that the evidence adduced on the side of the complainant is clear on the point that the payee made a demand by giving notice in Crl.A. No.683 of 2005 -: 10 :- writing. Learned counsel for the respondent/accused has pointed out that notice should have been sent by registered post though it is not required to notice send by registered post. It has been held by the Apex Court in M/s.SIL Import, USA v. M/s.Exim Aides Silk Exporters, Bangalore reported in [AIR 1999 SC 1609] where it was held :-
"12. The duty cast on the payee on receipt of information regarding the return of the cheque unpaid is mentioned in clause (b) of Section 138. Within 15 days he has to make a demand for payment. The mode of making such demand is also prescribed in the clause, that it should be "by giving notice in writing to the drawer of the cheque". Nowhere it is said that such notice must be sent by registered post or that it should be despatched through a messanger.
13. Chapter XVII of the Act, containing Sections 138 to 142, was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1968. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipment already in vogue and also in store for future. If the Court were to interpret the words "giving notice in writing" in the section as restricted to the Crl.A. No.683 of 2005 -: 11 :- customary mode of sending notice through postal service or even by personal delivery, the interpretative process would fail to cope up with the change of time."
In M.S.Madhusoodhanan v. Kerala Kaumudi (P) Ltd. and others [2004 (9) SCC 204] it was held based on the facts of that case that the notice by certificate of posting could not be presumed to have been effected. But the learned counsel would submit that in that case it was so observed since the relations between the parties were embittered and the certificate of posting was also suspect. Another Bench of two Judges of the Apex Court in VS Krishnan v. Westfort Hi-Tech Hospital Ltd. [2008 (3) SCC 363] referred the judgment in M.S.Madhusoodhanan's case cited supra and held, based on the facts in that case, that the notice sent under certificate of posting had been duly served. In M.S.Madhusoodhanan's case and in VS Krishnan's case what was considered was the notice sent by certificate of posting for the purpose of Section 53(2) of the Companies Act, 1956. But still the principle enunciated in Crl.A. No.683 of 2005 -: 12 :- those decisions as to the presumption that can be attached to the service of notice by certificate of posting is applicable to the facts of this case also. The Apex Court in Samittri Devi v. Sampuran Singh reported in [2011 (1) KLT SN 57 (C.No.75) SC] held thus :
"......... It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such a presumption is expected to be drawn even in the case of a letter sent under postal certificate."
Though a certificate was produced by the complainant evidencing sending of notice by certificate of posting, the defence contends that, that certificate should be totally discarded as according to the defence it was procured by illegal means. Whether such a postal certificate was illegally procured is not discernible from the evidence and circumstance pointed out by the defence. The certificate of posting would lead to a presumption that if the letter was addressed and posted in due course it should be presumed Crl.A. No.683 of 2005 -: 13 :- that it reached the addressee. It is important to note that it would be the payee who would be the loser if the notice is sent in the correct address. So far as the case on hand is concerned, there is evidence regarding due execution of the cheque. It was issued to discharge a legally recoverable debt. The payee, in the normal course will not adopt any trick or strategy to avoid sending of notice since that is a pre-requisite for filing a complaint. Why should an evil motive be attributed in such cases is not discernible from the evidence on record.
10. It is also pointed out by the learned counsel for the appellant that there was no case for the accused when he appeared before court that he had offered to pay the amount. The stand taken by him through out was that no amount was due from him and that the cheque in question was not issued by him. Since those contentions have been found against, he cannot contend that since the notice was not sent by registered post prosecution cannot be sustained, Crl.A. No.683 of 2005 -: 14 :- the learned counsel for the complainant submits.
11. However, since this aspect requires further elucidation, I find that it is just and proper that the matter is remanded to the trial court. Hence, the verdict of acquittal is set aside. The case is remanded to J.F.C.M.-I, Sulthan Batheri for fresh disposal in accordance with law. Both parties are given liberty to adduce further evidence in the matter. They will appear before the court below on 23.2.2012.
N.K.BALAKRISHNAN, JUDGE.
Jvt/smvd