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Kerala High Court · body

2006 DIGILAW 288 (KER)

Santosh Kumar v. P. Jayakumar

2006-05-30

K.A.ABDUL GAFOOR

body2006
Judgment :- The appellant/complainant did not succeed in his prosecution launched alleging offence punishable under Section 138 of the Negotiable Instruments Act against the respondent. According to him, the accused borrowed an amount of Rs.40,000/-. When repayment demanded he issued Ext.P1 cheque on 20.3.1999. When it was presented to the Bank on the same day, it bounced. This was orally intimated to the accused, who told the complainant to wait for some more days. Therefore it was represented on 11.8.99. But it bounced again on the ground that there was no sufficient fund in the account maintained by the accused, the drawer of Ext.P1 cheque. Therefore, he issued a notice demanding payment of money covered by the cheque on 14.8.1999 by registered post. This was returned as unclaimed in spite of service of intimation on the addressee as is revealed by Ext.P5 return letter. There upon the complaint was instituted. The accused has not denied drawal of cheque, Ext.P1 and the signature there on. His case is that he had been residing on the date mentioned in Ext.P1 and the period around it in Aluva and not in Manjeri where the cheque was issued. He had produced the ration card Ext.D1 to show that he had been taking ration articles from the shop near Aluva during the said period. He had also produced Ext.D2 pass book during the said period covered by Ext.P1. He did not have any bank transaction. According to him he had issued Ext.P1 cheque to the Merchants’ Association in Manjeri in 1994. It had been clandestinely made use of by the complainant to foist a case. Therefore it is not in discharge of any legally recoverable debt either in whole or in part. 2. The complainant had adduced evidence by examining himself and PW2 the postman to show that he had given intimation to the addressee in Ext.P5 and that the permanent residence of the addressee in Ext.P5 was in Manjeri at the relevant point of time. The bouncing of the cheque has been duly proved by Ext.P2 memo and the date of arising of the cause of action and the filing of the complaint in time has been proved on the strength of Ext.P3 notice and Ext.P4 postal receipt and Ext.P5 return letter. The bouncing of the cheque has been duly proved by Ext.P2 memo and the date of arising of the cause of action and the filing of the complaint in time has been proved on the strength of Ext.P3 notice and Ext.P4 postal receipt and Ext.P5 return letter. The court below appreciating the evidence in this case came to the conclusion that around the period covered by Ext.P1 there was no bank transaction by the accused and that he had been residing in Aluva. Therefore the cheque could not have been issued by him. 3. This conclusion cannot be sustained because admittedly accused/respondent had issued Ext.P1 cheque, though to some other person. But he did not have any case how this has come in the hands of the complainant. He had never complained to the police or even to the merchant’s association about this cheque coming to the hands of the complainant either before the complaint or after the complaint. He has no case that the complainant had stolen the cheque from his hands or from the office of the merchant’s association. When Ext.P1 is a cheque drawn by him on a bank in which the accused maintained an account, it cannot be stated, by producing a ration card to show he was purchasing ration articles from Aluva that he was not in the place where the cheque has drawn. That is not sufficient to rebut the presumption available under Section 118 and 139 of the N.I. Act against him. 4. It is thus proved that he had drawn the cheque. When a cheque is so drawn, unless otherwise proved, it shall be only in discharge of a liability. That cheque bounced as is revealed by Ext.P2 for want of funds. There was notice with demand as is revealed by Ext.P3 to Ext.P5, as statutorily enjoined in clause (b) of the proviso to Section 138 of the N.I Act. 5. It is true that, as contained in the judgment impugned the cheque Ext.P1 had been presented on 20.3.99 itself. It bounced on that date. It is also discernible from the evidence on record that the complainant had intimated orally to the accused about the bouncing. The court below had taken it as a notice. When the deposition of PW1 is scanned carefully, it can be seen that it was only an oral intimation. It bounced on that date. It is also discernible from the evidence on record that the complainant had intimated orally to the accused about the bouncing. The court below had taken it as a notice. When the deposition of PW1 is scanned carefully, it can be seen that it was only an oral intimation. In order to satisfy the requirement of clause (b) of the proviso to Section 138, the demand made for payment of the amount covered by the bounced cheque shall be by way of a notice and in writing. Ext.P5 is the notice so issued in writing. Therefore the cause of action has to be reckoned with reference to Ext.P5 and not the oral communication on 20.3.99 or in and around that date, stated to be made by the complainant to the accused. 6. It is also proved through the evidence of PW2 that the permanent residence of the accused is in Manjery as shown in the Ext.P5 address and it is in Manjeri that he did have the business. It is in the very same address that he had been served from the court below as well as from this court. Even if he has a permanent residence in Aluva nothing prevents him from conducting a business in Manjeri. He has his wife house, admittedly in Manjeri and that address is shown in the notice Ext.P5 and in the summons issued from the court below as well as from this court. Ext.P5 notice was not collected by him from the post office, in spite of an intimation served. Necessarily, service of statutory notice is to be presumed as duly completed. 7. Therefore the offence has been proved in this case. Accordingly, the respondent/accused is convicted for the offence punishable under section 138 and he is sentenced to undergo imprisonment for a day until the rising of the court on 25.7.2006, when he shall appear for receiving the sentence and to pay a compensation of Rs.50,000/-, failing which he shall undergo simple imprisonment for three months. Compensation if collected shall be paid to the appellant. Appeal is allowed as above.