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2017 DIGILAW 813 (KER)

T. R. Babu v. Jayapalan, S/o. Madhavan

2017-05-29

ALEXANDER THOMAS

body2017
ORDER : 1. The revision petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.3806 of 2010 on the file of the Judicial First Class Magistrate Court-I, Kochi, instituted on the basis of a complaint filed by the first respondent herein. 2. The dishonoured cheque involved in this case is for Rs.15,00,000/-. The trial court, as per the impugned judgment rendered on 27.4.2012, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs.15,00,000/- to the complainant under Section 357(1)(b) of the Cr.P.C and in default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months. Aggrieved thereby the petitioner had preferred Crl. Appeal No.369 of 2012 before the Sessions Court, Ernakulam. The appellate court concerned (Court of the Additional Sessions Judge-VIII, Ernakulam), as per the impugned judgment rendered on 14.10.2016, had confirmed the conviction and modified the sentence to undergo simple imprisonment for a period of two months and to pay fine of Rs.15,00,000/- and in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. The fine amount, if realised, shall be paid to the complainant as compensation under Section 357(1) of the Cr.P.C. 3. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 4. At the time of admitting this Crl. Revision Petition, this Court had ordered notice to be issued to R1/complainant and now it is endorsed by the Registry that notice sent to R1 has been returned and signed on 12.6.2017. Though service of notice has been duly completed, there is no appearance for party. Therefore, when the case had come up for consideration on the previous occasions on 21.6.2017, 23.6.2017 and 27.6.2017, this Court had adjourned the matter to ascertain whether there is any appearance for R1. Even today when the matter is taken up for consideration, there is no appearance for that party. 5. Heard Sri. R. Muraleekrishnan, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 6. Even today when the matter is taken up for consideration, there is no appearance for that party. 5. Heard Sri. R. Muraleekrishnan, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 6. Sri.R.Muraleekrishnan, learned counsel appearing for the revision petitioner/accused, has raised various contentions challenging the legality and correctness of the impugned conviction and sentence in this case. He would also argue that the complainant has not been able to prove the transactions which led to the alleged issuance and execution of the cheque. Apart from such various contentions, Sri. R. Muraleekrishnan, learned counsel for the petitioner/accused, would further contend that the complainant had sent Exhibit P3 statutory demand notice dated 30.10.2010, deliberately to the Society to which the accused was a member in order to ensure that he does not receive the notice and to take coercive steps against him to pressurise him to pay off the amount, etc. It is clear from the materials on record which are relied on by the complainant as well as the evidence given by the complainant that the petitioner's correct address was not the one as shown in the demand notice and that lack of service of the said notice to the petitioner would vitiate the entire prosecution proceedings in this case, etc. It is seen that the address to which Exhibit P3 notice has been sent to the petitioner is as follows : "T.R. Babu, Kochi Tourist Development Society, Church Landing Road, Kochi". It is pointed out that PW1 (complainant) has clearly admitted in his cross examination that during the relevant time in 2010, the accused was only a member of the Kochi Tourist Development Society and thus PW1 himself has admitted that the accused was never an officer bearer like President, Vice President and Secretary of the said Society. Further it is also pointed out that the complainant (PW1) has also candidly admitted in his cross examination that the complainant closely knew the accused since 2007 and that the complainant has gone to the residence of the accused at Aluva and he knows the location of the residential address of the accused, etc. It is also not in dispute that the alleged transactions between the rival parties are not in any manner connected with the business and functioning of the above said Society. 7. It is also not in dispute that the alleged transactions between the rival parties are not in any manner connected with the business and functioning of the above said Society. 7. Sri.R.Muraleekrishnan, learned counsel appearing for the revision petitioner/accused, has taken attention of this Court to the following portions of the cross examination of PW1:- xxx xxx xxx The address of the accused as shown in the complaint is also as the one given in the above said demand notice. Incidentally, learned counsel for the revision petitioner/accused would also point out that since the complainant has shown the address of the accused in the cause title of the complaint as stated above, the counsel for the accused was also constrained to show the very same address in the cause title of the appeal as well as in this revision petition, as otherwise the Registry of the court could have noted defects in showing the address of a party which is different from the one shown in the impugned judgment of the trial court. On a perusal of the impugned judgment of the trial court, it is seen that the learned Magistrate has recorded in the last sentence of paragraph 8 of the said judgment as follows : "According to the accused, the complainant did not send notice in his correct address and the accused did not receive any notice." It is also pointed out that the accused had never received summons in the complaint, as it was not in his address and later, he came to know about the pendency of the complaint for the first time when the police had executed the non bailable warrant issued by the Magistrate and produced him before the Magistrate whereupon he was granted bail. 8. Apart from recording the above said crucial contention of the accused, the trial court has not dealt with the import of the specific contention anywhere in the impugned judgment. The appellate court has dealt with this contention and has rejected the tenability of that contention by placing reliance on paragraph 17 of the three Judge Bench decision of the Apex Court in C.C.Alavi Haji v. Palapetty Muhammed & another reported in (2007) 6 SCC 555 , which reads as follows: "17. The appellate court has dealt with this contention and has rejected the tenability of that contention by placing reliance on paragraph 17 of the three Judge Bench decision of the Apex Court in C.C.Alavi Haji v. Palapetty Muhammed & another reported in (2007) 6 SCC 555 , which reads as follows: "17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [ (1999) 7 SCC 510 ] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." (emphasis supplied) 9. On a consideration of the above said crucial aspect, this Court is of the definite view that both the trial court as well as the Appellate Court have egregiously erred in dealing with these vital contentions of the petitioner. The trial court has committed a serious illegality and impropriety in not even meeting the above said crucial contention except by merely recording it in paragraph 8 of the trial court judgment. The trial court has committed a serious illegality and impropriety in not even meeting the above said crucial contention except by merely recording it in paragraph 8 of the trial court judgment. On the other hand, the appellate court has overruled the said contention by placing reliance on paragraph 11 of the above said Apex Court judgment. However, the appellate court also has egregiously erred in not appreciating the crucial aspect of the matter that the benefit of those observations in paragraph 11 of the said judgment could be availed only if the complainant could prove that he had sent the statutory demand notice under Section 138 proviso (b) to the accused in the correct last known address. If in the facts of a particular case, the complainant has a case that the address as shown in the demand notice was the one which was last known to him, it is understandable. No such factual situation arises in the facts of this case. Paragraph 15 of the Apex Court judgment in C.C. Alavi Haji (supra) is a complete answer in favour of the petitioner to the above said findings of the appellate Sessions Court. Paragraph 15 of the said judgment reads as follows : "15. ...Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the affronted mandatory statutory procedural requirements have been complied with. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the affronted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends." (emphasis supplied) Therefore, the complainant is statutorily obliged to have send the requisite prior statutory demand notice in terms of Section 138 proviso (b) to the accused in the correct address whereby he should call upon the accused to pay off the amounts covered by the cheque within 15 days of receipt of such notice. True that it has been held by the Apex Court as in the three judge Bench ruling in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. reported in (2014) 9 SCC 129 , that the commission of the offence under Section 138 of the Negotiable Instruments Act is on the dishonour of the cheque and that the other statutory conditions in the proviso to Section 138 of the N.T. Act like the issuance of statutory demand notice, cheque should be within the validity period, complaint should be filed within the requisite one month period etc. are all conditions which are to be satisfied in order to make the offence prosecutable. But as held by the Apex Court in C.C. Alavi Haji's case (supra) the whole objective in sending the prior statutory demand notice is to enable the accused to make amends by making the payment if in fact the allegations of the complaint are correct. So long as the prior statutory demand notice has not been sent to the accused in his correct address, there is no question of prosecuting the complaint under Section 138 of the Negotiable Instruments Act. So long as the prior statutory demand notice has not been sent to the accused in his correct address, there is no question of prosecuting the complaint under Section 138 of the Negotiable Instruments Act. The case laws on that point are in legion and there is no requirement to cite any authorities on that elementary aspect of the matter. Now coming to the facts of this case, admittedly, the demand notice was sent to the Society of which the accused was only a member. It is not the case of the complainant that the accused was an office bearer like President, Vice President or Secretary of the said Society at the time of sending Exhibit P3 demand notice. On the other hand, the complainant has fully admitted that the relevant time in 2010, the accused was only a member of the said Society. The alleged transaction between the rival parties which led to the alleged liability and the alleged issuance of cheque have nothing to do with official business of the above said Society. More importantly, the complainant has also conceded in his cross examination that he had close relationship with the accused since 2007 and that he has gone to the residence of the accused at Aluva and that he knows the residential address of the accused, etc. When the complainant very well knew the residence and the location of the accused, one fails to understand as to how any person properly instructed on facts and law governing the field could come to the conclusion that notice has been sent in the correct address. It is clear like the day light that statutory demand notice was never sent to the accused in the correct address. The petitioner has also pointed out that he came to know of the complaint proceedings at the first time when he was arrested by the police on execution of the non bailable warrant issued against him by the learned Magistrate due to his non appearance, after the issuance of the summons, etc. It is also seen that the statutory demand notice was returned with the endorsement "door locked/unclaimed". It is also seen that the statutory demand notice was returned with the endorsement "door locked/unclaimed". When the complainant very well knew that the accused was only a member of the Society at the relevant time and when the complainant also knew the correct residential address of the accused, the only conclusion that can be reached by any court is that the statutory demand notice has not been sent in the correct address. Therefore, this Court need not examine the various other contentions which have been seriously canvassed by the learned counsel appearing for the petitioner. This crucial and relevant aspect of the matter has been totally omitted to be considered by both the courts below in its correct factual and legal perspective. Crucial and relevant facts on this issue has been shut out by both the courts below. Therefore, evidently both the impugned judgments of the courts below are tainted by grave illegality and impropriety. In such a situation, this Court sitting in revision is under the judicial obligation to ensure that the said illegality and impropriety committed by the courts below are interfered with in this revisional proceedings. There is no point in remitting the matter to any of the courts below, as the crucial fact in issue is clear like the day light. 10. For all these reasons, the impugned judgments of both the courts below are set aside. Resultantly, the conviction and sentence imposed on the petitioner in this case are also set aside. The petitioner is acquitted of the offence alleged under Section 138 of the Negotiable Instruments Act and he is set at liberty. The petitioner will produce a certified copy of this order before the trial court for necessary information. With these observations and directions, the Crl. Revision Petition stands finally disposed of.