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2006 DIGILAW 659 (KER)

P. Jithendranath v. Walson Laboratories

2006-10-05

J.B.KOSHY

body2006
Judgment :- The appellant who is the complainant in a petition filed under section 138 of the Negotiable Instruments Act filed this appeal against the acquittal of the respondent/accused under section 255(1) of the Code of Criminal Procedure. His case was that the accused persons had borrowed Rs.3,00,000/= from him for the purpose of first respondent M/s. Walson Laboratories, Kozhikode and the second respondent issued a cheque dated 26.7.1993 towards the liability. The second respondent is the managing partner. Respondents 3 and 4 are the partners of the registered firm. The cheque was signed by the second respondent. Since there was no sufficient money in the account of the second respondent, the cheque was dishonoured and he approached the court. The Magistrate's Court after considering the evidence found that the complainant failed to prove that the cheque was issued in discharge of a legally enforceable debt and also found that if a deemed date is taken as the date of service of statutory notice to the second respondent, the matter is time barred. Service of notice to the second accused as contended by the complainant was not proved. I have gone through the evidence. As regards the first contention, neither in the sworn statement nor in the chief examination the appellant/complainant stated that the cheque was issued for valid consideration. He did not depose in chief examination the date when advance was given, when the cheque was received and at which place it was issued. But, during cross examination it is stated the cheque was issued at his house and he also stated that he advanced money to the first respondent firm as it was in dire financial needs. He has a further case that he had Rs.1,25,000/= in cash with him and he borrowed Rs.1,75,000/= from one Bala Kurup and paid Rs.3,00,000/= to the second respondent for the purpose of the firm. The source of Rs.1,25,000/= kept by him in cash was not proved. He did not also examine Bala Kurup or adduce any evidence to show that Bala Kurup handed over the balance Rs.1,75,000/= to him. Being a bank employee the complainant should have details of the money he was having and money he has borrowed. So, relying on the evidence of the complainant itself the trial court came to the conclusion that the complainant was not able to prove that the cheque was issued for valid consideration. Being a bank employee the complainant should have details of the money he was having and money he has borrowed. So, relying on the evidence of the complainant itself the trial court came to the conclusion that the complainant was not able to prove that the cheque was issued for valid consideration. Respondents 2, 3 and 4 are brothers of the complainant and it has come out in evidence that there are various other cases pending between them. Another Bank Manager also filed cases against these accused and according to the respondents/accused those cases are also filed at the instance of the complainant. Section 139 of the Negotiable Instruments Act only provides rebuttable presumption. It is settled law that burden of the accused to rebut the presumption is by preponderance of probabilities and not beyond reasonable doubt. Since from the evidence of the complainant itself accused was able to prove that consideration was not paid and, therefore, initial burden has been discharged by the accused, presumption under section 139 of the Negotiable Instruments Act disappeared in this case as held by the Supreme Court in Narayana Menon v. State of Kerala (2006 (3) KLT 404 (SC)). 2. Secondly it was found that there was no valid service of notice and if there was valid service of notice complaint is time barred. As far as the first accused firm is concerned, even according to the complainant, the money was given for the firm and cheque was issued in the name of the firm, but, no evidence was adduced to show that any notice was issued to the first accused firm. With regard to the second accused, notice was returned unserved stating that `door was locked'. Endorsement in the acknowledgment card (Ext.A9) shows that notice was issued to the second accused at a given address. The postman found that the addressee left that place and letter was redirected on 29.7.1993. The postman on getting information about a possible address of the accused redirected the letter to another place. There it was found that the door was locked on 31.7.1993 and it was returned with an endorsement `door locked'. The court was of the view that if `giving of notice' is sufficient as contended by the complainant, then, 29.7.1993, the date when postman returned the notice with endorsement `door locked' should be taken as the acceptance date. There it was found that the door was locked on 31.7.1993 and it was returned with an endorsement `door locked'. The court was of the view that if `giving of notice' is sufficient as contended by the complainant, then, 29.7.1993, the date when postman returned the notice with endorsement `door locked' should be taken as the acceptance date. If that be so, complaint was time barred. But, the notice sent was not issued in the correct address. The accused has the case that letter was also not redirected to the correct address and, therefore, `giving of notice' in some address is not enough for complying with statutory requirement of service of notice. Notice should be given in the correct address. Further, mere giving of notice will not be sufficient when notice is returned stating that it was unserved because it is not the correct address or door is locked in the redirected address. When acknowledgment card is returned unserved with such endorsement, we cannot say that the notice was served in the correct address. In this case, notice was actually not served. 3. Learned counsel for the appellant relied on the decision of this court in Mohammed Ashraf v. Sharafuddin (2003(3) KLT Short Notes 77) where it is stated that by giving a notice in the correct address will be sufficient. But, there the notice was given in the correct address. The only defect was that complainant was not able to produce acknowledgment card. Here, the notice was not given in the correct address. So, that decision is not applicable to this case. In Raja Kumari v. Subbarama Naidu (2004 (3) KLT 799(SC)) the Supreme Court held that `giving notice' is not the same as `receipt of notice'. In that particular case notice was given in the correct address and acknowledgment card came with the endorsement that `house been locked'. In such circumstances, the Supreme Court held that burden is on the complainant to show that accused has managed to get an incorrect postal endorsement by some arrangement. Here, finding of the court below was that notice was not given in the correct address and if it was given in the correct address, endorsement `addressee left' (29.7.1993) can be taken as the deemed date of service of notice and then complaint is time barred. It is a possible view. Here, finding of the court below was that notice was not given in the correct address and if it was given in the correct address, endorsement `addressee left' (29.7.1993) can be taken as the deemed date of service of notice and then complaint is time barred. It is a possible view. Cause of action to prosecute drawer of the cheque arises when the drawer fails to make payment within 15 days of `receipt' of the notice as held in D. Vinod Shivappa v. Nanda Belliappa ((2006) 6 SCC 456). In the above decision Apex Court held as follows: "The question as to whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially a question of fact, and that must be considered in the light of the evidence on record." Here, proof regarding receipt of notice is lacking. No evidence was adduced by the appellant that postal endorsement was manipulated by the second accused. 4. Finding of the trial court is not perverse or patently illegal and it cannot be stated that view of the court below is not a possible view. No grounds are made out in the appeal to interfere in an order of acquittal. The appeal is dismissed.