IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 714 of 2002()
1. A.N. BAIJU S/O. NARAYANAN ARISSERIL,
... Petitioner
Vs
1. T.G.MOHANAN S/O.GOPALAN,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SMT.K.V.RESHMI
For Respondent :SRI.MATHEW PHILIP EDAPPALLIL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :22/05/2009
O R D E R
M.N.KRISHNAN, J
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CRL.A. No.714 OF 2002
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Dated this the 22nd day of May 2009
JUDGMENT
This appeal is preferred against the order of acquittal passed by the
Judicial I Class Magistrate, Vaikom in C.C.No.290 of 1998. The accused
was proceeded against under Section 138 of the Negotiable Instruments Act.
The brief facts of the case as revealed from the complaint are to the effect
that the accused had borrowed a sum of Rs.75,000/- on 23.9.1997 and
towards the discharge of liability he had issued a cheque written in his
hand bearing the date 23.10.1997. When the cheque was presented for
encashment, it was dishonoured and thereafter statutory notice was issued
and the case was filed. The case of the accused as seen from 313 statement
appears to be that he had no transaction with the complainant and that he
had given the cheque to one Prasad of Kaduthuruthy and it was given as a
security for the amount given by the said Prasad in favour of one Vijayan.
2. In the trial court, Pws 1 to 3 were examined. Exts.P1 to P7 were
marked and the court below entered a finding to the effect that there has
been no notice as contemplated under the statute and therefore dismissed
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the case. It is against that decision, an application for filing the appeal with
special leave was preferred which was allowed and subsequently the
appeal has been admitted.
3. The points that arise for determination in the appeal are: (1)
Whether the accused had borrowed a sum of Rs.75,000/- as alleged by the
complainant and has committed offence punishable under Section 138 of
the Negotiable Instruments Act and (2) Whether the notice which is marked
as Ext.P4 is proper and sufficient.
4. Point No.1: This point deals with the transaction. It is the case of
the complainant that on 23.9.1997 he had advanced a sum of Rs.75,000/-
and on that date, the accused had issued a post dated cheque dated
23.10.1997 undertaking to discharge the liability. When the said cheque
was prevented for encashment, it was returned with the endorsement
‘insufficiency of funds’. Ext.P1 is the cheque dated 23.10.1997 and issued
in favour of the complainant through Kaduthuruthy Urban Co-operative
Bank. Ext.P2 is the intimation given by the Branch Manager that the
cheque has been returned unpaid for want of sufficiency of funds. Ext.P4 is
the returned registered notice about which detailed discussions are
necessary later.
5. PW1 had deposed before court that the accused had approached
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him for advancement of the amount one week prior to the date of borrowal
and that he had raised the funds by selling the timber from his property and
had handed over the amount on 23.9.1997. He had been vehementally
cross examined and nothing is brought out to discredit the evidence of the
complainant. Though the accused has got a case that a signed blank cheque
was given as security to one Prasad in a transaction relating to Vijayan,
nothing is forthcoming in the form of documentary or oral evidence to
substantiate the same. I am conscious of the fact that under Section 315 of
the Code of Criminal Procedure, the accused cannot be compelled to let in
any evidence. Now it is a well settled proposition that in 138 cases, the
courts are entitled to weigh the preponderance of probabilities of evidence
in order to find out the truth. Now the evidence of PW1 remains
unshattered. He had given cogent reasons how he had raised the funds and
how the amount is given and therefore I find that execution of Ext.P1 stands
proved and when it is proved the presumption follows under Section 118
that it is supported by consideration and the further presumption that it is
issued towards the discharge of liability also is proved under Section 139 of
the N.I.Act. So, the evidence of PW1 coupled with the presumption
established the case of borrowal by the accused from the complainant.
6. The next question is regarding the compliance of statutory notice.
Crl A 714/2002 -:4:-
It is mandatory that the complainant has to give a notice in writing to the
drawer of the cheque so as to enable him to discharge the liability within the
statutory period as required under Section 138(b) of the NI Act. Now an
important question that has been considered and found against the
complainant is regarding the fact whether in fact there is a proper notice as
contemplated under Section 138(b).
7. I had perused the original of Ext.P4 and it would show that it has
been addressed to T.G.Mohanan, Thandathiparambu, Kuruvanthara,
Manjoor. It is the same address that is shown in the complaint as well and
the accused had received summons in that address. Ext.P4 would go to show
that the postal authorities had given notice on 14.3.1998 and then had
returned it to the sender as unclaimed. This matter is attempted to be
proved by examining PW2, who was the postman at the relevant point of
time. PW2 had deposed that he had visited the house on 14.3.1998 and at
that time, the addressee was not available and therefore he had given
intimation to the father of the accused and had come back. He also asserts
that the accused is residing permanently in the address shown therein. It is
true that the complainant has got a case that the accused was in the house at
the time of bringing the summons and it was a deliberate act. It is true that
he also filed a complaint before the higher authorities on that regard. But
Crl A 714/2002 -:5:-
the fact remains that at least the father of the accused was present in the
house and he was intimated about the factum of the registered notice and
according to the postman since the accused did not go to the post office and
received the notice in spite of intimation and notice, it was returned to the
sender as unclaimed. I feel and find that the procedure adopted by the
postal authorities is only just and proper. There is no case for the accused
that he was not residing in that house. Now in a catena of decisions, the
Apex Court has made it very clear that when a person gives an address at
the time of transaction and later changes the residence, it is his duty to
inform the person concerned or at least to the postal authorities regarding
the change of address. In 138 cases, the courts have found that if technical
approach is made, there is no difficulty for a person to defeat the claim by
evading notice. So giving the intention and purport of Section 27 of the
General Clauses Act, the courts have held that when the notice is properly
addressed and that person has been intimated, it is sufficient and it amounts
to valid notice in writing. So far as this case is concerned, PW2 had been
examined and he had deposed before court that the father had been duly
intimated about the notice but the refusal was on the part of the accused to
go to the post office and collect the notice. Or, in other words, it is only a
deliberate avoidance of the notice to escape from the liability which cannot
Crl A 714/2002 -:6:-
be entertained. Here, there is also evidence tendered by PW3 who
according to him had come to the house of the accused in order to get his
cycle repaired by the father of the accused and there was some conversation
regarding notice in favour of the accused. So, the things are very clear and
I find that the court below has been totally technical and has not understood
the purport of a valid notice as contemplated under Section 138(b) of the
Act. So, from these discussions, the following points are concluded, viz.,
the execution of the cheque is proved and the issuance of notice is also
proved. There has been a demand and the accused has not paid back the
amount within the time stipulated under the statute and therefore all the
necessary ingredients to constitute offence under Section 138 stand
established and therefore I set aside the judgment passed by the trial court
and find that the accused is guilty of the offence under Section 138 of the NI
Act.
8. Now comes to the question of sentence. By virtue of the
amendment to the provisions of the NI Act even the Magistrate is competent
to impose a fine equivalent to double the amount of the cheque issued.
There is no point in sending the person to the jail. So, I confine my finding
by holding that the accused can be convicted for the offence under Section
138 of the NI Act and sentenced to pay a fine of Rs.1 lakh, as the
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transaction is of the year 1998 which on realisation shall be given to the
complainant.
In the result, the appeal is allowed. The judgment of the trial court is
set aside and the accused is found guilty of the offence punishable under
Section 138 of the NI Act and he is convicted and sentenced to pay a fine of
Rs.1 lakh which on realisation shall be paid to the complainant. The accused
shall pay the fine so ordered on or before 31.8.2009 failing which the trial
court can execute the sentence as contemplated under Section 421 Cr.P.C.
M.N.KRISHNAN, JUDGE
Cdp/-