Kerala High Court
Shri.Pothen Joseph vs T.K.Chandra Bhanu on 27 May, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935
CRL.A.No. 208 of 2007
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CC 172/2004 of J.M.F.C., RAMANKARI
APPELLANT(S)/COMPLAINANT:
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SHRI.POTHEN JOSEPH,
KOTTUKAPPALLY, KAVALAM.
BY ADVS.SRI.JOHN VARGHESE
SRI.K.S.SAJEEV KUMAR
RESPONDENT(S)/ACCUSED AND STATE:
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1. T.K.CHANDRA BHANU, S/O.THANKAPPAN,
ANILKUMAR SADANAM, VEMBANATTU, R.BLOCK
P.O.ATTUMUKHAM, AARAYIRAM KAYAL, AVALOOKKUNNU
ALAPPUZHA.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.K.A.SALIL NARAYANAN
R2 BY P.P.BIJU MEENATTOOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4-3-2013,
THE COURT ON 27-5-2013 DELIVERED THE FOLLOWING:
P. D. RAJAN, J.
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Crl. A. No. 208 of 2007
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Dated this 27th day of May, 2013.
JUDGMENT
This appeal is preferred by the complainant against the judgment in C.C. No.172/2004 on the file of the Judicial Magistrate of the First Class, Ramankari, which was filed under section 138 of the Negotiable Instruments Act.
2. Appellant's case before the trial court was that the 1st respondent borrowed a sum of Rs.1,00,000/- from him and in discharge of that debt, he issued Ext.P1 cheque. When the cheque was presented for encashment, it was dishonoured for the reason of insufficient funds. The appellant sent a lawyer's notice, but it was not accepted by the 1st respondent and the same was returned. When there was no repayment, the complaint was filed in the trial court.
3. In the court below 1st respondent adduced both oral and documentary evidence, which consist of evidence of PWs.1 and 2 and Exts.P1 to P6. The 1st respondent examined DWs.1 to 3 and marked Exts.D1 to D3. The trial CRA 208/2007 2 court after analyzing the evidence adduce, acquitted the accused/1st respondent under section 255(1) Cr.P.C. Aggrieved by that, the complainant preferred this appeal.
4. Heard both sides. Learned counsel for the appellant contended that there was notice as per section 138(b) of the Negotiable Instruments Act. The endorsement "return to the sender" is to the effect that the 1st respondent had unclaimed the postal article and the intentional non- acceptance of the 1st respondent need not be established by the appellant. The defence contention put forward by the 1st respondent is unbelievable. As the execution of Ex.P1 cheque was admitted by the 1st respondent, presumption under sections 118 and 139 of the Negotiable Instruments Act is available to the appellant.
5. Learned counsel appearing for the respondent strongly resisted the above contentions and contended that there was no proper notice as per the statute. It is the responsibility of the appellant to prove that he complied with section 138(b) of the Negotiable Instruments Act. The CRA 208/2007 3 presumption arises only when execution is proved. The trial court had considered all these facts and acquitted the 1st respondent and hence there is no reason to interfere with the finding recorded by the trial court.
6. Now the question arises for consideration is whether a notice under section 138(b) of the Negotiable Instruments Act was served on the 1st respondent? If so, the order passed by the trial court under section 138 of the Act is sustainable in law? The structure of the prosecution case was erected on the basis of the oral testimony of PWs.1 and 2 in this case. The oral evidence of PW1 shows that the 1st respondent borrowed a sum of Rs.1,00,000/- from him and in discharge of that debt, the 1st respondent issued Ext.P1 cheque dated 11-1-2004 and when the cheque was presented, the same was dishonoured for want of insufficient funds. Ext.P2 is the dishonour memo and Ext.P3 is the intimation. He sent Ext.P4 lawyer's notice intimating about the dishonour of the cheque. Ext.P5 is the postal receipt. On analyzing the oral testimony of PW1 and Exts.P1 CRA 208/2007 4 to P3, it is clear that when the cheque was presented for encashment, it was dishonoured for the reason of insufficient funds.
7. In this context, I have considered whether there is any non-compliance of section 138(b) of the Act. According to section 138(b) of the Act, the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The evidence of PW1 shows that after dishonour of Ext.P1 cheque, he sent Ext.P4 lawyer's notice. Ext.P5 is the postal receipt. But the notice was returned to the appellant with endorsement "return to the sender". The specific case of the appellant was that the 1st respondent was evading notice deliberately.
8. Section 27 of the General Clauses Act, 1897 deals with meaning of service by post, which reads as follows:-
"27. Meaning of service by post.-- Where any CRA 208/2007 5 Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expression "give" or "send" or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document and unless the contrary is proved, to have been affected at the time at which the letter would be delivered in the ordinary course of post."
9. Under section 138 of the Negotiable Instruments Act the method of giving notice in writing is not mentioned. Therefore, the principle incorporated in section 27 of the General Clauses Act can be applied in a case where sender despatched the notice by post with the correct address written on it. In Alavi Haji V. Muhammed, 2007(3) KLT 77 (SC), the Supreme Court held that "it is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in S.27 of the General Clauses Act CRA 208/2007 6 would be attracted; the requirement of Clause (b) of proviso to S.138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause ) of the said proviso for payment by the drawer of the cheque." In another decision M/s. Indo Automobiles V. M/s. Jai Durga Enterprises and others, 2008 (3) KHC 815, the Supreme Court held that once notice has been sent by registered post with acknowledgment due in a correct address, it must be presumed that the service of notice has been made effective. In K. Bhaskaran V. Sankaran Vaidhyan Balan and another, 1999 SCC (Cri) 1284, the Supreme Court held thus:
"24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served CRA 208/2007 7 and that he was not responsible for such non- service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
10. The words in clause (b) of the proviso to section 138 of the Act show that the payee has the statutory obligation to "make a demand" by giving notice. Then, it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.
11. The evidence adduced by the appellant shows that he gave proper notice in the correct address to the 1st respondent. When such responsibility is discharged by the appellant, the 1st respondent has to prove that it was not really served on him. No evidence has been adduced by the 1st respondent in the trial court to show that the intimation about the notice was not served on him. When PW1 was cross-examined no question was asked regarding the non- CRA 208/2007 8 compliance of section 138(b) of the Act. When DW1 was examined, such a contention was not taken. When there is direct evidence with regard to compliance of section 138(b) of the Act, the contention advanced by the 1st respondent is not sustainable. In such a situation it is presumed that there was proper service of notice as per section 138(b) of the Act. The trial court failed to appreciate that position and acquitted the 1st respondent. In the circumstances, I am of the view that the impugned judgment is liable to be set aside.
12. In the result, judgment dated 17-10-2006 in C.C. No.172/2004 is set aside and the matter is remitted to the trial court for fresh consideration in accordance with law.
The parties are directed to appear before the trial court on 26-6-2013.
The appeal is allowed as above.
P. D. RAJAN, JUDGE.
nkm.