IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 682 of 2003()
1. N.BHASKARAN NAIR, BHAGERATHAN,
... Petitioner
Vs
1. NOORJAHAN W/O. PEERU MOHAMMED,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.BIJU KURIAKOSE
For Respondent :SRI.B.SATHIQ
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/08/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 682 OF 2003
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Dated this the 21st day of August, 2009.
J U D G M E N T
This appeal is preferred against the order of acquittal
passed by the Judicial First Class Magistrate-I,
Thiruvananthapuram in C.C.401/98. It was a case u/s 138 of
the Negotiable Instruments Act. It is the case of the
complainant that the accused had borrowed a sum of
Rs.80,000/- and towards the discharge of the liability had
issued a cheque which when presented for encashment
returned with the endorsement of payment stopped. A
statutory notice was issued and it is returned as ‘unclaimed’.
Thereafter prosecution has been launched.
2. It is the case of the defence that no proper notice
has been issued and therefore an action will not lie. The
learned trial judge after a consideration of the entire materials
found that it has not been properly addressed and therefore
held that the statutory mandate u/s 138 of the Negotiable
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Instruments Act has not been complied with. It is against that
decision the complainant has come up in appeal. I did not
have the assistance of both the lawyers and therefore I had
perused the documents, evidence and the judgment and
proceed to dispose of the matter. It is the case of the
complainant that the accused had borrowed a sum of
Rs.80,000/- and towards the discharge of the liability had
issued the cheque.
3. Now the point on which the court below has
acquitted the accused is that no notice had been sent. The
notice had been addressed to one Smt. Noorjahan w/o Peeru
Mohammed T.C.49/423-2 and PRR 122 Kameleswaram,
Thiruvananthapuram. The husband of the accused as DW1
would contend that it is not the proper address. He had
deposed before court that house No. is T.C.49/328 and his
name is Shahul Hameed and not Peeru Mohammed. On the
contra it is submitted that the Residrent’s Association had
given a number to the house therein and that No. is PRA 122.
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4. The question of law that arise for determination is
regarding the sufficiency of notice. The Hon’bel Supreme
Court in the decision reported in Alavi Haji v. Muhammed
(2007 (3) KLT 77) had held that “where payee despatches
notice by registered post with correct address of drawer of
cheque, principle incorporated in S.27 of General Clauses Act
would be attracted. Or in other words if a notice is addressed
in the proper address then the presumption would arise u/s 27
of the General Clauses Act. Now, the factual question is
whether a notice has been properly addressed. The evidence
of PW1 who is none other than the husband of the accused
would show that he does not remember the address of the
accused. So his evidence is not of much avail.
5. PW2 is a chance witness who according to him had
come to collect some amount from the houses and at that
time he saw the transaction. This witness is able to say the
address of the accused. He knows the complainant, according
to him for the last 20 years but he does not know his address.
So here is a witness who is very familiar to the complainant
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and who does not know the address of the complainant but
knows the address of the accused. I am not prepared to
accept his evidence. Now the factual circumstances is very
suspicious to hold that he had been available there.
6. PW3 is the postman of the said post office. He
would depose that he had tendered the letter and as it was
locked he had returned it and therefore intimation has been
given as ‘unclaimed. According to him he looks into the T.C.
No. He has very categorically said that the name of the
husband of the accused is Peeru Mohammed. But when it is
asked that is it not Shahul Hameed, he has no answer to be
given. It has to be stated that the endorsement only shows
unclaimed and it does not also very much help the Court.
7. Now the accused had produced an extract of the
ration card. Original was produced before court. A certified
copy after verification was marked as Ext.D1. It would show
that the name of the husband of the accused as Shahul
Hameed and not Peeru Mohammed. The house No. is 49/328
and not 49/323. So these two factors convincingly establish
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one point that the letter has not been addressed in the proper
address. Unless a letter is sent to the accused in his proper
address the presumption that is available u/s 27 of the
General Clauses Act does not apply. So in the light of the
pronouncement of the Apex Court on that point it is to be held
that the complainant has not succeeded in proving that he has
issued a proper notice. U/s 138 of the Negotiable Instruments
Act what is contemplated is a notice in writing and it must be
to a proper person in a proper address. Therefore I cannot
find fault with the court below in arriving at a decision that the
notice is not proper and the accused is entitled to an acquittal.
Therefore there are no grounds to interfere with the decision
rendered by the court below. Hence the appeal lacks merit
and the same is dismissed.
M.N. KRISHNAN, JUDGE.
ul/-
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M.N. KRISHNAN, J.
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Crl.A. No. 682 OF 2003
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J U D G M E N T
21st August, 2009