RAVI Vs. AYYAPPA ROLLER FLOUR MILLS LTD

JUDGEMENT

(1.) First respondent lodged the complaint alleging that petitioner purchased goods and issued Ex. P2 cheque drawn in his account maintained in Irinjalakuda Branch of Canara Bank for payment of Rs. 89,048 due and when the cheque was presented for encashment through Lord Krishna Bank, Kaloor Branch where first respondent has an account, under Ex. P3 memo the cheque was dishonoured for want of sufficient funds and it was intimated to first respondent under Ex. P4 memo and first respondent sent Ex. P5 lawyer notice demanding the amount under registered post. It was contended that as the postal acknowledgement was not received, first respondent sent Ex. P6 complaint to the Postmaster, Changampuzha Nagar Post office from where Ex. P5 notice was sent and Ex. P7 letter was received from the Postmaster stating that matter will be enquired and fact will be intimated. It was contended that petitioner did not pay the amount and thereby committed an offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of PW1, DW1 and Exs. P1 to P8 found petitioner guilty and convicted and sentenced him to undergo simple imprisonment for a period of three months and a compensation of Rs. 95,000 for the offence under Section 138 of Act. Petitioner challenged the conviction and sentence before the Sessions Court, Ernakulam in Criminal Appeal No. 639/2006. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for one month and a compensation of Rs. 90,000 and in default simple imprisonment for 15 days. This petition is filed under Sections 397 and 401 of Code of Criminal Procedure.

(2.) Learned counsel appearing for petitioner and first respondent were heard.

(3.) Learned counsel appearing for petitioner argued that Courts below failed to take note of the fact that there was no cause of action to file a complaint and for that sole reason conviction and sentence are to be set aside. Learned Counsel argued that under Clause (c) of proviso to Section 138 only if the drawer of the cheque fails to pay the amount covered by the dishonoured cheque within 15 days of receipt of the said notice, cause of action will arise and Ex.P5 lawyer notice was not served on the petitioner and therefore petitioner did not fail to pay the amount demanded under that notice and therefore there is no cause of action. It was argued that even first respondent when examined as PW1 did not depose that Ex.P5 notice was served on the petitioner and the very case in the complaint is that he did not get back the postal acknowledgement and therefore first respondent sent Ex. P6 letter to the Postmaster to ascertain whether notice was served and Ex. P7 reply was received which shows that the matter is being enquired and there is no case in the complaint that as notice was not returned, it is presumed that notice was served on the petitioner and petitioner failed to pay that amount and thereby committed the offence. Learned counsel also pointed out that even PW1 had no case that petitioner either received the notice or refused to receive the notice or that he did not get back any further communication from the Postmaster subsequent to Ex. P7 letter and it cannot be presumed that notice was served on the petitioner, learned counsel also argued that notice was not sent to the petitioner in the correct address but in the address shown in the complaint and the summons issued to the petitioner in that address was redirected to another address and even in that address summons was not served and in such circumstance Courts below should have found that the complaint is not maintainable. Learned counsel relied on the decision of the Apex Court in Subodh S. Salaskar v. Jayaprakash M. Shah, 2008 3 KerLT 616. and argued that presumption provided under Section 21 of the General Clauses Act that could only 6e drawn when there is evidence to prove that notice was sent in the correct address and evidence of PWl establish that he did no know the correct address and as he has no case that notice was sent in the correct address and the materials available establish that the address shown in Ex. P5 is not the correct address, the presumption provided under Section 27 of General Clauses Act cannot be drawn and if so, there complaint is premature and the conviction and sentence are to be set aside. Learned counsel relying on the decision of the Apex Court in Shakti Traval & Tours v. State of Bihar & Anr., 2002 9 SCC 415. argued that in the absence of an allegation in the complaint and also evidence that notice has been served on the petitioner, the complaint should have been dismissed.