Kerala High Court
P.V.Monichan vs State Of Kerala on 5 March, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
CRL.A.No.1577 OF 2006
CRL.A.NO.540/2003 OF COURT OF ADDITIONAL SESSIONS
JUDGE(SPL), KOTTAYAM
CC 818/1999 OF JUDL. MAGISTRATE OF FIRST CLASS-II (MOBILE),
(CHANGANACHERRY) KOTTAYAM
Crl.L.P. 372/2006 OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT/COMPLAINANT:
P.V.MONICHAN
PADATHIL HOUSE, PERUNNA P.O., CHANGANASSERY.
BY ADV. SRI.JOHN VARRGHESE
RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 ABDUL HAKEEM
MADURA HOUSE, PERUNNA P.O., CHANGANACHERRY.
R1 BY ADV.SMT. M.N.MAYA, PUBLIC PROSECUTOR
R2 BY ADV. SRI.B.BIPIN
R2 BY ADV. SRI.R.REJI
R2 BY ADV. SRI.M.V.THAMBAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-
02-2020, THE COURT ON 05-03-2020 DELIVERED THE FOLLOWING:
Crl.A.No.1577/2006
:-2-:
"C.R."
Dated this the 5th day of March, 2020
J U D G M E N T
The order of acquittal of accused passed by the Additional Sessions Judge, Kottayam in Crl.A.No.540/2003 reversing the order of conviction and sentence of the trial court in C.C. No.818/1999, a private complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act'), is challenged by the complainant in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (for short 'the CrPC').
2. The appellant claimed before the trial court that the accused issued Ext.P1 cheque post-dated to 27.03.1999 for an amount of Rs.70,000/-in the name of the appellant drawn on Crl.A.No.1577/2006 :-3-:
Syndicate Bank, Changanacherry Branch, in discharge of a legally enforceable debt incurred by him. The cheque on presentment was dishonoured by the drawee bank with an endorsement 'account closed'. Thereupon, the appellant sent Ext.P4 demand notice by registered post in the correct address of the accused which returned as 'unclaimed'. Thereafter, the complainant lodged the complaint under Section 138 of the NI Act, claiming it to have been filed in compliance with all statutory formalities.
3. The accused, who denied the charge against him in the trial court, opposed the prosecution under two grounds; (a) the demand notice sent by registered post was not in his correct address. He was at the time of alleged service of Ext.P4 demand notice, employed and residing in Saihat Damman, Saudi Arabia which is also the address furnished with the drawee bank and mentioned in Ext.P7, NRI account maintained by him with the Crl.A.No.1577/2006 :-4-:
drawee bank and (b) he did not have any monetary transaction nor did he incur any such liability with the appellant, except that the appellant introduced to him one Monichan in Alappuzha, from whom he received an amount of Rs.15,000/- as loan, for which, a blank cheque was issued. Strangely enough, it was later converted into Ext.P1 cheque by Monichan colluding with appellant. Since Ext.P1 was subjected to material alteration, it is void and prosecution case is, therefore, illegal.
4. PWs.1 to 3 are the witnesses, including the appellant who were examined on his side before the trial court and Exts.P1 to P8 are the documents adduced in evidence by him. No defence evidence was adduced by the accused, except his cross-examining the witnesses seeking to bring out facts in support of defence plea.
5. PW2, the Manager of drawee bank proved that on the date when the account was closed, the outstanding balance at the credit of the accused Crl.A.No.1577/2006 :-5-:
was far below the cheque amount which was insufficient to encash the cheque. This is not a fact disputed by the accused also. The trial court, therefore, rightly found that notwithstanding the ground of dishonour being indicated as 'account closed', offence punishable under Section 138 of the NI Act was attracted in the case.
6. Accused sought to rely on the evidence given by PW3, the Post Mistress that she had made an endorsement on Ext.P4 postal cover to the effect that addressee had already left India. She explained that the said endorsement was made relying on the information given to her by the mother of the accused available at the house, though it was later struck off and replaced by another endorsement made by her as 'unclaimed' presumably acting under the instruction given by a Clerk in the post office. PW1, the appellant had a contention before the trial court that the accused Crl.A.No.1577/2006 :-6-:
willfully evaded service of notice with ulterior motive.
7. The trial court after considering the evidence on record accepted the contention of the appellant and held that demand notice was sent in the correct address of the accused and deemed service of notice on the addressee must be presumed having regard to the presumption under Section 27 of the General Clauses Act, 1897 (for short, 'the GC Act'). It also accepted the testimony of the appellant regarding the loan transaction with the accused which led to issue of Ext.P1 cheque, as convincing. Appellant's evidence that issue of cheque was in discharge of liability towards Rs.70,000/- borrowed by accused, was believed. The contrary contention of accused that a blank cheque issued by him to one Monichan in Alappuzha was manipulated and misused by the appellant in collusion with Sri. Monichan was held to be not proved or probabilised. This finding of Crl.A.No.1577/2006 :-7-:
the court below resulted in the accused being convicted of offence under Section 138 of the NI Act and sentenced to undergo Simple Imprisonment for three months. The amount of cheque was also ordered to be paid to the appellant as compensation followed by a default sentence.
8. In appeal against conviction and sentence, the findings were challenged by the accused before the lower appellate court reiterating the defence contentions raised before the trial court.
9. The lower appellate court accepted the contention of the accused that there was no proper and due service of demand notice under Section 138(b) of the NI Act as it was returned unclaimed and took the view that appellant failed to establish the service as having been effected in the correct address of accused. The presumption of deemed service under Section 27 of the GC Act pressed into service was thus, refused to be drawn rejecting the contention of the appellant. The Crl.A.No.1577/2006 :-8-:
lower appellate court did not choose to go into the merits of the prosecution claim nor examine the correctness of finding of the trial court which held Ext.P1 cheque as having been issued in discharge of legally enforceable debt. It consequently reversed the conviction and sentence and acquitted the accused of the offence. This finding is seriously challenged in this appeal.
10. The fact that Ext.P4 was sent in the known address of the accused is not denied by him. Same address in Ext.P4 was also adopted in the vakalath filed by him before the trial court. The alleged illegality with the demand notice as pointed out by the accused is that the notice ought to have been sent to his address in Saudi Arabia, where he was employed and staying. It seems that his contention that he was not available in India at the time when service of Ext.P4 notice was attempted in his known address must be true, in the light of the evidence given by the Post Crl.A.No.1577/2006 :-9-:
Mistress.
11. The main question arising for decision in this appeal is whether the lower appellate court erred in its finding that demand notice was not issued in the correct address of the accused though at the time of purported service, appellant had clear knowledge of absence of accused in his known address in India.
12. I heard the learned counsel for the appellant as well as the accused.
13. The true significance of the expression 'correct address' in Section 27 requires to be understood in the context of the object of sending notice envisaged in Section 138(b) of the NI Act. When the notice is sent by registered post, the presumption of deemed service under Section 27 of the GC Act arises, provided it is proved to be despatched in the correct address of the noticee. Section 138(b) of the NI Act does not insist that actual receipt of notice by the drawer of the Crl.A.No.1577/2006 :-10-:
cheque must be proved. It is enough if the notice is sent to the addressee and deemed service is made out by presumption of law. The only condition precedent for invoking the presumption of deemed service under Section 27 of the GC Act is to establish that notice was sent by registered post and despatch was in the correct address of the sendee.
14. Cases are not rare where the payee or holder sending demand notice upon dishonour of his cheque, may find it very difficult to trace out the drawer of the cheque in his known address for want of knowledge of his whereabouts. Absence of addressee from the known or disclosed address may be sometimes for valid grounds also. Whatever may be his cause, by reason of his absence, the notices sent by registered post in his known address could only return to the sender unserved with variety of postal endorsements. Question in such cases of return is whether the accused can Crl.A.No.1577/2006 :-11-:
resist presumption of deemed service referable to Section 27 being drawn against him, contending that the notice was defective since it was not sent in the actual address where he was available or could have been traced.
15. The rule of presumptive service under Section 27 ordinarily applies to notices sent through postal authorities after registration in accordance with the prevailing postal regulations. A postman is required by the regulations to effect delivery within his beat at the mail address furnished and in case the addressee is not traceable in the said address, he is to make attempts for delivery at the place where the addressee could be found out on due enquiries.
16. The Postal Manuals require persons absenting from or leaving their place of address to places whether inland or abroad, to intimate the concerned post offices about such departure and furnish correct postal address for delivering Crl.A.No.1577/2006 :-12-:
mails. In the absence of the changes and variations in the postal address being periodically notified, the serving authorities have no option other than to return the communications to the senders themselves as unclaimed with requisite endorsements thereon. The addressee who neglects or fails to inform the changed address with the postal authorities does have, in my opinion, no right to contend that service was not made or attempted in his correct address and presumption of service under Section 27 cannot consequently be drawn against him. A person leaving for abroad owes a duty to the postal authorities to intimate the address details where he desires the registered post sent in his name to be taken for delivery, in his absence from station. Any breach in this respect will certainly entitle the sender to fall back upon the presumption of deemed service under Section 27 and contend that post was served in the known and Crl.A.No.1577/2006 :-13-:
correct address of the sendee.
17. The accused has no case that he had made necessary arrangements with the postal authorities before leaving for Saudi Arabia, for receipt of registered posts addressed in his name, in his absence from the station. Nor does he have a case that he had already furnished his foreign address to the appellant before the demand notice was despatched in his known house address. I am satisfied that proof of despatch of Ext.P4 notice in the known house address of the accused entitles the appellant to fall back upon the presumption of deemed service under law and contend that service is proper. The contrary finding of the lower appellate court is therefore, erroneous under law.
18. Even assuming for a moment that the appellant had within his knowledge the details of foreign address of the accused before sending the demand notice also, I cannot subscribe to the view of the lower appellate court that prosecution must Crl.A.No.1577/2006 :-14-:
fail for the reason that notice was not issued in the Saudi Arabian address. In my view, even in such an extreme case also, Ext.P4 cannot be rejected as being insufficient or invalid, since there is nothing brought on record to establish that the accused suffered any sort of prejudice in the facts of the case or any of his legal rights were affected on account of the alleged breach of Section 138(b) of the NI Act.
19. The object of Section 138(b) seeking payee or holder to send demand notice to the drawer of the cheque upon dishonour, before initiation of prosecution under Section 138, is to give the latter an opportunity to discharge his liability under the cheque within the period stipulated by law. If a drawer of cheque who fully acknowledges liability under the cheque is deprived of opportunity to discharge the debt within the limits of period prescribed by law, it will not cater to the object of Section 138(b) which law Crl.A.No.1577/2006 :-15-:
seeks to achieve. But then one fails to comprehend how a drawer who disowns liability under the cheque and is determined to challenge the prosecution claim as false could justifiably complain of an inadvertent irregularity in the impugned service of demand notice as if he was prejudiced by denial of opportunity when, as a matter of fact, a demand notice could hardly have benefitted him, having due regard to the genuine object of sending of notice contained in Section 138(b) as afore mentioned. A drawer, whose defence denying liability for payment of cheque amount having been found by the court on evidence to be either not proved or improbable, has ordinarily no right, in my opinion, to contend that demand notice returned as unclaimed was not sent in his correct address and thus resist presumption of deemed service under Section 27 being drawn against him. I am of the opinion that once the demand notice is sent by registered post to the Crl.A.No.1577/2006 :-16-:
drawer of the cheque in his address known or disclosed at the time of issue of the cheque, he cannot resist the normal presumption of deemed service contending that he was not available in the unserved address or his address had changed as borne out from the postal endorsements on the returned cover unless he could establish by evidence that he was kept out of service deliberately despite the sender having been informed of his current and uptodate address.
20. The dispute as to the legality of service of demand notice in the purported correct address of the drawer and the consequence of alleged breach of Section 138(b), in my opinion, are matters which the trial courts are to take up and decide ordinarily at the stage of completion of trial and prejudging of such issue may not be conducive to proper exercise of jurisdiction since the purported prejudice to the accused could be better addressed with regard to his proposed Crl.A.No.1577/2006 :-17-:
defence in the case. If he denies the liability for payment of cheque amount and contests the charge under Section 138 of the NI Act, in my view, he may not be justified in seeking rejection of complaint on the mere showing that demand notice was not despatched in the correct postal address, since he is least affected or prejudiced by the alleged denial of opportunity for discharge of liability which he does not admit.
21. A fair and reasonable interpretation of Section 138(b) appears to be that even an honest and scrupulous drawer of cheque who admits liability under the cheque also should not be permitted to demand rejection of prosecution imputing defect in the address, since he could still claim before the trial court, as held by Honourable Apex Court in C.C.Alavi Haji v. Palappetty Muhammed & Anr. [(2007)6 SCC 555] in paragraph No.17, an opportunity to make payment of cheque amount to the complainant within the period Crl.A.No.1577/2006 :-18-:
prescribed by Section 138(b) of the NI Act at least from the date of receipt of summons from court and simultaneously demand termination of the prosecution through an order of rejection. For the aforecited reasons, I hold that the lower appellate court went wrong in concluding that there was breach of Section 138(b) of NI Act on account of Ext.P4 demand notice not having been allegedly taken to the correct address of the accused.
22. On the merits of the prosecution case also, I am satisfied that appellant proved that Ext.P1 cheque was issued in discharge of a legally enforceable debt. He proved that he had sufficient funds to advance loan of Rs.70,000/- to the accused. He is an agriculturist by profession and he claimed that he was conducting a lodge also. These facts were not challenged by the accused in the cross examination of PW1. The accused did not dispute his signature in the cheque except that it Crl.A.No.1577/2006 :-19-:
was issued as blank to one Monichan in Alappuzha and it later came to the unauthorised possession of PW1 by way of collusion between parties. The defence case was not probabilised in any convincing manner. No rebuttal evidence was also adduced by the accused. The presumption of consideration under Section 139 of the NI Act attaching to Ext.P1 cheque stands unrebutted.
23. In complete agreement with the view of the trial court, I hold that the appellant succeeded in proving execution and issue of Ext.P1 cheque in discharge of legally enforceable debt incurred by the accused. Consequently, the impugned order of acquittal passed by the lower appellate court is liable to be reversed and accordingly, I hold that the accused is guilty of offence punishable under Section 138 of the NI Act.
In the result, appeal succeeds and in reversal of the order of acquittal, the accused/2nd respondent is convicted and sentenced under Crl.A.No.1577/2006 :-20-:
Section 138 of the NI Act to undergo simple imprisonment for a day till rising of the court and also pay compensation of Rs.70,000/- under Section 357(3) of the CrPC with consequential default sentence for another simple imprisonment for three months.
Sd/-
T.V.ANILKUMAR,JUDGE ami/DST