Research › Search › Judgment

Kerala High Court · body

2023 DIGILAW 896 (KER)

Komala Unnikrishnan v. Manoj Kumar K.

2023-11-13

SOPHY THOMAS

body2023
ORDER : 1. This revision petition is at the instance of the accused in S.T. No. 683 of 2004 on the file of Special Judicial First Class Magistrate (Marad cases), Kozhikode, assailing the judgment in Crl. Appeal No. 608 of 2005 on the file of Additional District and Sessions Judge, Fast Track (Adhoc-1), Kozhikode, which upheld her conviction and sentence under Section 138 of the Negotiable Instruments Act. 2. S.T. No. 683 of 2004 was based on a complaint filed by one Mr. Manoj Kumar, who is the 1st respondent herein, alleging an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’) committed by the revision petitioner herein. According to him, the revision petitioner was running a chitty business in the name and style “Kerala Chitty Fund” having its administration office at Trivandrum, and branches at various places in Kerala. The complainant/1st respondent subscribed two chitties having sala of Rs. 5,00,000/- and Rs. 1,00,000/- respectively, conducted by the revision petitioner. He properly remitted monthly instalments at the Tirur branch of the revision petitioner. Ultimately, towards discharge of the debt due to the complainant/1st respondent, the revision petitioner issued two cheques; one cheque for Rs. 76,000/- dated 28.04.2004 and another cheque dated 05.06.2004 for Rs. 1,02,000/- drawn on Syndicate Bank, Tirur branch. On presentation of those cheques before bank by the complainant/1st respondent, the same were dishonoured for want of sufficient funds in the bank account of the revision petitioner. Though registered lawyer notice was sent to the revision petitioner, in the address of the administrative office at Trivandrum as well as in the address of the branch office at Tirur, informing dishonour of the cheques and demanding the cheque amounts, she neither repaid the amount nor sent any reply, in spite of receipt of notice on 21.07.2004. Hence he filed the complaint. 3. On appearance of the revision petitioner before the trial court, particulars of the offence was read over and explained, to which she pleaded not guilty and claimed to be tried. Thereupon, PWs. 1 and 2 were examined and Exts.P1 to P14 were marked from the side of the complainant/ 1st respondent. 4. On closure of evidence of the complainant/1st respondent, the revision petitioner was questioned under Section 313 of Cr.P.C. and she denied all the incriminating circumstances brought on record. DW-1 was examined and Exts. Thereupon, PWs. 1 and 2 were examined and Exts.P1 to P14 were marked from the side of the complainant/ 1st respondent. 4. On closure of evidence of the complainant/1st respondent, the revision petitioner was questioned under Section 313 of Cr.P.C. and she denied all the incriminating circumstances brought on record. DW-1 was examined and Exts. D1 and D2 series documents were marked as defence evidence. Ext.C1 was marked as court exhibit. 5. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 138 of the NI Act and she was convicted and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 1,80,000/- to the complainant/ 1st respondent. In default of payment of compensation, she was directed to undergo simple imprisonment for two months. 6. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No. 608 of 2005, and the appellate court, on re-appreciation of the facts and evidence, upheld the conviction and sentence imposed by the trial court and dismissed the appeal, against which, she has come up with this revison. 7. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed by the trial court as well as the appellate court. 8. Heard learned counsel for the revision petitioner and learned counsel for the 1st respondent. 9. The issuance of Exts.P1 and P2 cheques by the revision petitioner in favour of the 1st respondent is not much disputed. Dishonour of those cheques due to the reason 'funds insufficient' also is not in dispute. Now the main ground, on which the revision petitioner is assailing the concurrent findings of the courts below is that the notice as envisaged under Section 138(b) of the NI Act was not properly served on the revision petitioner. The case of the complainant/1st respondent was that, on dishonour of the cheques, he sent lawyer notice to the revision petitioner, in the address of the administration office at Trivandrum, and also in the address of the branch office at Tirur. Ext.P5 is the copy of the lawyer notice. Ext.P5(a) is the postal receipt and Ext.P5(b) is the acknowledgment card of the notice which was sent in the address of the branch office at Tirur. Ext.P5 is the copy of the lawyer notice. Ext.P5(a) is the postal receipt and Ext.P5(b) is the acknowledgment card of the notice which was sent in the address of the branch office at Tirur. Ext.P13 is the copy of the notice sent in the address of the administration office at Trivandrum. Ext.P13(a) is its postal receipt and Ext.P13(b) is its acknowledgment card. 10. Learned counsel for the revision petitioner pointed out that, Exts.P5(b) and P13(b) acknowledgment cards though addressed to the Tirur office and Trivandrum office respectively, both notices appear to have been received on the same day i.e. on 21.07.2003 and both acknowledgment cards were signed by the very same person, as seen from the signature. The trial court also found that, signature of the revision petitioner found in Exts.P1 and P2 cheques was not the signature found in Exts.P5(b) and P13(b) acknowledgment cards. So, according to him, those notices were not received by the revision petitioner, and so, there is no proper service of notice. 11. The trial court rightly found that, in Ext.P5(b) acknowledgment card, there is impression of postal seal from Trivandrum. Obviously, it was re-directed to the Trivandrum office address, and that may be the reason for both the acknowledgment cards signed on the same day, by the very same person. True that Exts.P5(b) and P13(b) do not bear the signature of the revision petitioner. The trial court opined that, the revision petitioner might have authorized somebody to receive the postal articles reaching the administrative office in her name, and that person might have received the postal articles and signed the acknowledgment cards. 12. The revision petitioner has no case that, the address in Exts.P5(b) and P13(b) notices were incorrect. The summons sent to the revision petitioner from the trial court in the very same address was received by her, and Ext.C1 is the summons so received by her. When notice was sent in the correct address of the revision petitioner, and there is evidence to show that it was despatched in correct address, then the burden shifts to the person who alleges that it was not received by her. Even when she was examined under Section 313 Cr.P.C. she has no case that she did not receive the notice sent by the 1st respondent or the address in Ext.P5 and P13 notices were not correct. Even when she was examined under Section 313 Cr.P.C. she has no case that she did not receive the notice sent by the 1st respondent or the address in Ext.P5 and P13 notices were not correct. Therefore, the finding of the trial court that there was proper service of notice was not liable to be interfered with by the appellate court. Though the 1st respondent examined PW-2 the postman to prove service of notice, with supporting records, no records were available as reported by the Postmaster vide Ext.P12 letter. Even then, since there is evidence to show that, notices were sent to the revision petitioner in both address within the time frame, there is proper compliance of Section 138(b) of the NI Act, and the burden shifts to the revision petitioner to prove it otherwise. 13. In C.C. Alavi Haji vs. Palapetty Muhammed and Another, (2007) 6 SCC 555 , the Apex Court held that, 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 NI Act stands complied with. 14. Paragraphs 14 and 15 of the decision C.C. Alavi Haji, (2007) 6 SCC 555 read thus: “14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice un-served, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already 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 “shop closed” or “addressee not in station” due service has to be presumed. This Court has already 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 “shop closed” or “addressee not in station” due service has to be presumed. [Vide Jagdish Singh vs. Natthu Singh, State of M.P. vs. Hiralals and V. Raja Kumari vs. P. Subbarama Naidus] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 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 un-served. 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 aforenoted 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. 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.” 15. In the case on hand, since there is evidence to show that the 1st respondent sent notice to the revision petitioner in her two addresses, and it was received by somebody attached to her office, may be on authorisation and no evidence is forthcoming from her side to show that the address was incorrect, or the person who received the notice was not authorised etc, her contention that there was no proper service of notice is liable to be rejected. 16. The next ground taken up by the learned counsel for the revision petitioner is that, Exts.P1 and P2 cheques were not issued by the revision petitioner from an account maintained by her. According to him, she was only a foreman in the chitty company and she has no personal liability to pay off the chitty amount to its subscribers. She is not disputing the fact that, she was the foreman of Kerala Chitty Fund. Exts.P1 and P2 cheques are signed by the revision petitioner in her capacity as foreman of Kerala Chitty Fund. Exts.P3 and P4 dishonour memo of those two cheques issued from the Syndicate Bank, Tirur, will show that, the reason for dishonour of those cheques was ‘funds insufficient’. If that account was not that of the revision petitioner, it should have been dishonoured for reason No. 51 in the dishonour memo i.e. ‘no such account’. If the signatures in those cheques were not that of the account holder, it should have been dishonoured for reason No. 10 in the dishonour memo i.e. signature differs. Since the dishonour was not for the reason “no such account” or “signature differs”, there is nothing to show that, the account from which Exts.P1 and P2 cheques were drawn, was not the account of the revision petitioner. Since the dishonour was not for the reason “no such account” or “signature differs”, there is nothing to show that, the account from which Exts.P1 and P2 cheques were drawn, was not the account of the revision petitioner. If it was not her account, she could have very well proved that fact with supporting documents. 17. DW-1 the witness examined from the side of the revision petitioner deposed that, Exts.P1 and P2 cheques were issued towards payment of Rs. 76,000/- and 1,02,000/- respectively to the 1st respondent, after adjusting the payments already made. So also, there is nothing to show that, those cheques were not issued for any legally enforceable debt. According to PW-1, the 1st respondent had subscribed other chitties also in their company and more amount, than the amount covered by the cheques in question, was due to the company from the 1st respondent. That is not a matter to be considered in this revision, as the chitty company is eligible to proceed against the 1st respondent, for the dues if any, from him. 18. As per Section 21 of the Kerala Chitties Act, 1975, every foreman shall be liable to the subscribers for the amount due to them. Here, it is seen that, the revision petitioner is not disputing the fact that, she was the foreman of the Kerala Chitty Fund and she herself signed Exts.P1 and P2 cheques in favour of the 1st respondent. Though the revision petitioner contended that, there was no proper service of notice as envisaged under Section 138(b) of the N.I Act, we have found that, notice in her both addresses were sent by the 1st respondent/complainant and both notices were received at her office at Trivandrum. She failed to prove before court that, the person who signed Exts.P5(b) and P13(b) acknowledgment cards were not authorized by her to receive the postal articles. Moreover, she failed to rebut the presumption available in favour of the complainant/ 1st respondent under Sections 118 and 139 of the N.I Act. 19. The trial court convicted the revision petitioner under Section 138 of the N.I. Act, and sentenced her to undergo simple imprisonment for six months and directed her to pay compensation of Rs. 1,80,000/- to the 1st respondent/complainant, and in default to undergo simple imprisonment for a further period of two months. The appellate court upheld her conviction and sentence and dismissed the appeal. 20. 1,80,000/- to the 1st respondent/complainant, and in default to undergo simple imprisonment for a further period of two months. The appellate court upheld her conviction and sentence and dismissed the appeal. 20. The transaction was in the year 2004. The revision petitioner was convicted by the trial court on 06.08.2005 and the revision petition was pending before this Court for the last 17 years. For all these years she was suffering the trauma of a criminal prosecution. The delay speaks about the failure of the system, in rendering speedy justice and this Court takes up the moral responsibility for this much of delay. This Court may not be justified in sending the revision petitioner who is a lady behind the bars, for a transaction which occurred about 20 years back. Taking into account all these facts, this Court is inclined to modify the sentence while upholding the conviction. The revision petitioner is sentenced to undergo simple imprisonment for one day till rising of court and to pay compensation of Rs. 2 lakh, considering the delay involved. 21. In the result, the revision petition is allowed in part, upholding the conviction and modifying and reducing the substantive sentence into simple imprisonment for one day till rising of the court and compensation of Rs. 2 lakh to the 1st respondent/complainant. In default of payment of compensation, she shall undergo simple imprisonment for a period of three months. 22. The revision petitioner is directed to surrender before the trial court on or before 07.12.2023 to receive the sentence and to pay the fine amount. In default, the trial court has to issue arrest warrant against the revision petitioner for executing the sentence. 23. Registry is directed to transmit the case records to the trial court forthwith, so as to execute the sentence, without further delay. 24. The revision petition stands allowed in part accordingly.