IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1958 of 2003()
1. RANJITH
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.M.R.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :23/11/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 1958 of 200
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Dated this the 23rd day of November, 2010
JUDGMENT
This appeal is filed by the complainant in C.C. No. 252 of
1995 on the file of the Judicial First Class Magistrate, Varkala,
The second respondent herein was the accused in that case,
which was filed by the complainant alleging commission of the
offence under Section 138 of the N.I. Act.
2. The allegation is that the accused borrowed a amount
of Rs.50,000/- from the complainant and on 1.5.1994 towards
the discharge of that liability, the accused issued Ext.P1 cheque
bearing dt.1.7.1994. When the complainant presented that
cheque for collection through his bank, it was dishonoured due
to insufficiency of funds in the account of the accused. When
the complainant received the memo in respect of that fact, the
complainant approached the accused directly and informed her
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about the dishoour of the cheque. Thereafter the complainant issued a
lawyer notice on 1.12.1994. The accused had shifted her residence
temporarily to Vadasserikonam with the intention of avoiding the
notice and hence the notice was re-directed to the temporary residence.
The complainant alleges that the accused purposefully not accepted
that notice and therefore it was returned and the accused did not
repay the amount even after the notice.
3. In the Magistrate Court, on the side of the complainant,
Pws.1 to 3 were examined and Exts.P1 to P6 and X1 were marked. On
the side of the accused, no evidence was adduced. The learned
Magistrate, on considering the evidence, found that the accused has
committed an offence under Section 138 of the N.I. Act and she was
convicted and sentenced to undergo S.I. for a period of six months and
to pay Rs.50,000/-, the cheque amount, as compensation under Section
357(3) Cr.P.C. in default to undergo S.I. for a further period of two
months. Against that conviction and sentence the accused filed
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Crl.A.No. 161 of 1997 before the First Additional Sessions Court,
Trivandrum, which was allowed and the accused was acquitted on
the ground that notice was not served on the accused. Against that
judgment the complainant filed this appeal.
4. Heard learned counsel for the appellant and the learned
Public Prosecutor.
5. The learned counsel for the appellant submitted that the lower
appellate court committed a grave error in not appreciating the
requirement of issuing notice and its receipt as contemplated under
Section 138 of the N.I. Act. This aspect was correctly appreciated and
a finding was correctly entered on it by the trial court. The learned
counsel for the appellant further submitted that the lower appellate
court failed to note that the accused has purposefully evaded notice
and there is deemed service of notice. The learned counsel further
submitted that the lower appellate court failed to note that the
presumption available under Section 114(e) of the Indian Evidence
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Act and Section 27 of the General Clauses Act are applicable in the
instant case.
6. When the accused was questioned under Section 313 Cr.P.C.,
she stated that the complainant was her relative and it was the usual
habit of the complainant to visit her house. He was a chitty foreman
also. The accused was in acute need of money as she was laid up in
connection with kidney trouble. She borrowed Rs.12,000/- from the
complainant. All the amounts were given back. The complainant
dishonestly received Ext.P1 cheque signed by the accused with the
help of one Kumar. The complaint is a falsely foisted one. She had
admitted that no amount was there in her account for honouring the
cheque.
7. The complainant was examined as PW1. According to him,
the accused borrowed an amount of Rs.50,000/- from the complainant
on 1.5.1994. She had received the amount by reaching the house of the
complainant at Vadasserikonam. According to him, Ext.P1 cheque
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has been drawn on that day for the discharge of the said liability. The
cheque bears the date 1.7.1994. It was presented for collection
through the State Bank of Travancore, Cheruniyoor branch. Ext.P2 is
the memo received to him stating that it was dishonoured for want of
sufficient funds in the account of the accused.
8. PW2 is the Bank Manager of the drawee bank, Indian
Overseas Bank, Vadasserikonam. Ext.X1 is the certified copy of the
account of the accused. PW2 has stated that Ext.P1 cheque was
bounced for want of sufficient funds in the account of the accused and
Ext.P2 is the memo issued by him to the payee bank stating that fact.
Ext.X1 shows that an amount of Rs.108.60 only was there in the
account of the accused when Ext.P1 cheque was presented for
collection.
9. In Section 313 Cr.P.C. statement, the accused has admitted
that Ext.P1 cheque was signed by her and there was no sufficient
amount in her account to honour Ext.P1 cheque, which was
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dt.1.7.1994. It was dishonoured on 18.11.1994 for want of sufficient
funds in the account of the accused. That shows that the cheque was
presented after the date mentioned in it i.e. 1.7.1994 and within six
months. The complainant received Ext.P6 intimation through the
payee bank that the cheque was bounced for want of sufficient funds in
the account of the accused on 21.11.1994. Ext.P3 is the postal
receipt, which shows that on 1.12.1994 a notice was issued to the
accused through an advocate. That shows that within 15 days of the
date of the bouncing of the cheque he had issued a legal notice. The
complaint was filed on 23.1.1995.
10. Ext.P5 is the registered notice sent by the complainant
addressed to the accused, which was returned unserved. The accused
has no case that her address shown in Ext.P5 registered notice is not
correct. The endorsement in Ext.P5 notice shows that on 7.12.1994
that notice was redirected to the present address of the accused and on
subsequent dates the accused was absent and the addressee left the
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place and on 18.12.1994 the notice was returned to the complainant’s
Advocate.
11. In the decision reported in C.C. Alavi Haji v. Palapetty
Muhammed ((2007) 6 SCC 555) it was held that:
“The Supreme Court has already held that when
a notice is sent by registered post and is returned with
a postal endorsement ‘refused’ or ‘not available in the
house’ or ‘house locked’ or ‘shop closed’ or ‘addressee
not in station’, due service has to be presumed.”
In view of the principles laid down in this ruling, due service of
Ext.P5 notice has to be presumed. The accused has not adduced any
evidence to show that she had no knowledge that the notice was
brought to her address or that the address mentioned on the cover was
incorrect or that the letter was never tendered or that the report of the
Postman was incorrect. Since the complainant has proved all the
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ingredients of the offence under Section 138 of the N.I. Act, the
learned Additional Sessions Judge is not justified in acquitting the
accused and the conviction entered by the learned Magistrate has to be
maintained.
12. In the decision reported in Damodar S. Prabhu v.
Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a
case of dishonour of cheques, compensatory aspect of the remedy
should be given priority over the punitive aspect. Considering the
facts and circumstances of the case, I am of the view that
sentencing the accused to pay a fine of Rs.60,000/- would meet
the ends of justice. The said fine shall be paid as compensation
under Section 357(1) of Cr.P.C.
13. Accordingly this appeal is allowed. The judgment in
Crl.A.No. 161 of 1997 on the file of the First Additional Sessions
Court, Trivandrum acquitting the accused is set aside and the
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accused in C.C.No. 252 of 1995 on the file of the J,.F.C.M.,
Varkala is found guilty and she is convicted under Section 138 of
the N.I. Act and sentenced to pay a fine of Rs.60,000/- The said
fine shall be paid to the appellant as compensation under Section
357(1) of Cr.P.C. The accused is permitted either to deposit the
fine amount before the court below or directly pay the
compensation to the appellant within four months from today and
produce a memo to that effect before the court below in case of
direct payment. If the accused fails to deposit or pay the said
amount within the aforesaid period, she shall suffer S.I. for a
period of one month by way of default sentence.
(M.L. JOSEPH FRANCIS)
Judge
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