IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1923 of 2003()
1. M.MOHAMMED KURIKAL, S/O. HYDRU KURIKAL,
... Petitioner
Vs
1. THARAKAN VEERAN S/O.MOOASAN HAJI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/06/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 1923 OF 2003
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Dated this the 17th day of June, 2009.
J U D G M E N T
This appeal is preferred against the judgment of the
Sessions Judge, Manjeri in Crl.A.276/02. The said appeal was
in turn preferred against the conviction and sentence passed
by the Judicial First Class Magistrate-II, Manjeri in S.T.68/01.
The trial Court convicted the accused to undergo imprisonment
for three months and to pay a fine of Rs.4000/- and further
directed him to pay a compensation of Rs.20,000/- to the
complainant. In appeal the learned Sessions Judge found that
the notice is defective and therefore acquitted the accused on
that ground. It is against that decision the present appeal is
preferred
2. The points that arise for determination are;
(1) Whether the Sessions court was correct in holding
that there was no proper notice?
(2) Whether the judgment calls for any interference.
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Points:
3. It is the case of the complainant that the accused
had borrowed a sum of Rs.50,000/- and had issued a cheque
towards the discharge of the liability which when presented for
encashment returned with the endorsement insufficiency of
funds. Thereafter a statutory notice was issued which was not
received by the accused which ended in prosecution. Now the
specific contention of the accused is that he had not been
served with the notice and therefore the prosecution cannot be
launched.
4. Heard the learned counsel for both the sides. U/s
138 of the N.I. Act it is imperative that a notice in writing
should be given to the accused. The said requirement is to
give a chance to the accused to wipe off the liability and avoid
a criminal prosecution. Instances are not very rare where the
accused deliberately keeps away from the purview of the
postal authorities so that notices are not served on them. This
has been a subject matter for consideration for a quite long
time by the courts.
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5. I had perused the notice which had been returned
back and it contains two endorsements. One, dated 16.1.01
and the other date 17.1.01. In both the endorsements the
endorsement is to the effect that ‘Absent, Intimated’.
Ultimately it was returned to the sender as ‘unclaimed’. The
practice of the postal authorities is to always attempt to
personal service on the person and if he is not available give
an intimation to his relatives or somebody so that he can
come and collect it. PW3 and 4 are two witnesses. PW4 is the
regular postman. He had given evidence to the effect that he
had attempted to serve notice on 16.1.01 and as the accused
was not present there intimation was given to one of his
relatives namely Azeez. On 17.1.01 absent intimation is noted
by one Moosath who admits that he had gone there but did
not admit that he had made an endorsement of intimation.
The notice is addressed to the proper address of the accused.
It has been held that when notices are sent on appropriate
address and attempt is made to serve them it may amount to
proper notice in writing u/s 138 of the N.I.Act. PW3 and 4 are
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unanimous on one aspect that they had gone to the place of
the accused to serve notice and it is evidenced by two
endorsements on that notice. It is also the case of PW4 that
he had intimated about the letter to Azeez who is the relative
of the accused. It can be seen that three chances are taken to
serve notice on the accused and then only it had been
returned to the sender as not claimed. From the materials
available the following things are clear.
1. The letter is addressed to the proper address of the
accused.
2. The postal authorities had visited the house of the
accused on two occasions and he was found to be not there.
3. PW4 has intimated about the notice to one Azeez.
So whatever could be done from the side of the postal
authorities had been done and the real purported intention
was to serve notice on the accused. Now in the decision
reported in Alavi Haji v. Muhammed (2007 (3) KLT 77)
the following principles have been very clearly laid down.
(1) “Where payee despatches notice by registered post with
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correct address of drawer of cheque, principle incorporated in
S.27 of General Clauses Act would be attracted. (2) This court
also 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- hop closed – or addressee
not in station -, due service has to be presumed. It is
therefore, manifest that in view of the presumption available
u/s 27 of the Act, it is not necessary to aver in the complaint
under S.138 of the Act that service of notice was evaded by
the accused or that the accused had a role to play in the
return of the notice unserved.” The Apex Court even held in
that decision that a person who does not pay the amount
within 15 days from the receipt of summons from the court
along with a complaint, cannot obviously contend that there
was no proper service of notice as required under S.138, by
ignoring statutory presumption to the contrary under S.27 of
General Clauses Act. So in the light of this authoritative
pronouncement of the Apex Court it can be very safely held
that there had been a proper notice in writing as contemplated
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u/s 138 of the N.I. Act. When it is so it has to be held that the
judgment rendered by the learned Sessions Judge has to be
set aside and I do so. On materials regarding the borrowal,
discharge towards liability, issuance of cheque etc., they are
all proved by cogent evidence. So the learned Sessions Judge
erred in reversing the judgment of the learned Magistrate.
Therefore I set aside that judgment and held that the accused
is guilty u/s 138 of the Negotiable Instruments Act.
6. Now, let me consider about the sentence. There is
no point in sending a person to jail if really he can wipe off the
liability. It will be sufficient if a punishment of imprisonment
till the raising of the Court is granted with a further direction
to pay the cheque amount as compensation, i.e. Rs.50,000/-.
In the result the Crl.A .is allowed and disposed of as follows
(1) The accused is found guilty u/s 138 of the N.I. Act
and convicted thereunder.
(2) He is sentenced to undergo imprisonment till the
raising of the court and to pay a fine of Rs.50,000/- and
in default of which he shall undergo simple
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imprisonment for a period of two months. When the
compensation is paid and let that amount be disbursed
to the complainant on proper application. The accused
shall appear before the trial Court to receive the
sentence and payment of compensation on 15.9.2009.
M.N. KRISHNAN, JUDGE.
ul/-