Kerala High Court
Noorudheen vs State Of Kerala on 29 July, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
CRL.REV.PET NO. 865 OF 2023
AGAINST THE JUDGMENT DATED 16.02.2023 IN Crl.A NO.175
OF 2019 OF III ADDITIONAL DISTRICT COURT, PALAKKAD / II
ADDITIONAL MACT, PALAKKAD ARISING OUT OF THE JUDGMENT DATED
10.07.2019 IN ST NO.114 OF 2017 OF JUDICIAL MAGISTRATE OF
FIRST CLASS II, ALATHUR
REVISION PETITIONER/S:
NOORUDHEEN
AGED 43 YEARS
S/O YUSAF GHANI, KONGATTU PARAMBIL, AYILOOR PO,
CHITTUR TALUK, PALAKKAD DISTRICT ., PIN - 678510
BY ADVS.
SHRI.THAREEQ ANVER
SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
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KERALA, ERNAKULAM., PIN - 682031
2 SAINABA
AGED 57 YEARS
W/O HANEEFA, NEAR MOSQUE, KADAMBIDI, (POST)
CHITTILANCHEERY, ALATHUR TALUK, PALAKKAD., PIN -
678704
BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)
SRI. HRITHWIK CS, SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 41.07.2025, THE COURT ON 29.07.2025 DELIVERED
THE FOLLOWING:
CRL.REV.PET NO. 865 OF 2023 3
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"CR"
P.V.KUNHIKRISHNAN, J
--------------------------------------
Crl.R.P No. 865 of 2023
--------------------------------------
Dated this the 29th day of July, 2025
ORDER
The short point raised in this revision is that the dictum
laid down by this Court in Saju v. Shalimar Hardwares,
Kattanam [2025 KHC OnLine 719] requires reconsideration
because three decisions of the Apex Court (Vinod Shivappa
v. Nanda Belliappa [2006 KHC 840], C C Alavi Haji v.
Palapetty Muhammed and Another [2007 (2) KHC 932]
and M/s Indo Automobiles v. M/s. Jai Durga Enterprises
and Others [2008 (3) KHC 815]) and two decisions of this
Court (Komala Unnikrishnan v. Manoj Kumar K. [2023
KHC 783] and Sarath C v. Muthoot Leasing and Finance
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Ltd. [2024 KHC 7092]) were not considered by this Court
while delivering the above judgment.
2. I will first narrate the facts in this case: The revision
petitioner is the accused in ST No.114/2017 on the files of the
Judicial First Class Magistrate Court -II, Alathur. The above
case was filed by the 2nd respondent herein alleging offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (for short “NI Act“). (Hereinafter, the revision
petitioner is mentioned as the accused and the 2nd respondent
is mentioned as the complainant).
3. The case of the complainant is that, the accused
borrowed an amount of Rs. 3,00,000/- from the complainant,
and to discharge the said debt, the accused issued a cheque
bearing No.479097 of Catholic Syrian Bank Ltd., Perumbavoor
Branch. When the cheque was presented by the complainant
before the State Bank of India, Nenmara Branch, the same
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was dishonoured, stating that there is no sufficient fund in the
account maintained by the accused. Though the complainant
issued a lawyer notice, the accused did not pay the amount.
Hence, the complaint was filed.
4. To substantiate the case, the complainant herself
was examined as PW1. One witness was also examined on the
side of the complainant. Ext.P1 to P6 are the exhibits marked
on the side of the complainant. One witness was examined on
the side of the defence as DW1, and Exhibit D1 is the exhibit
marked on the side of the defence. After going through the
evidence and documents, the trial court found that the
accused committed the offence under Section 138 of the NI
Act, and he was sentenced to undergo simple imprisonment
for a period of six months and to pay a fine of Rs. 3,00,000/-.
In default of payment of the fine amount, the accused is
directed to undergo simple imprisonment for a further period
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of six months. The fine amount, if realised, is directed to be
paid to the complainant as compensation under Section
357(1)(b) of Cr.PC. Aggrieved by the conviction and sentence,
the accused filed an appeal before the Sessions Court,
Palakkad. The Third Additional District and Sessions Judge
considered the appeal. After going through the evidence and
documents, the Appellate Court confirmed the conviction
imposed on the accused under 138 of the NI Act. The
sentence imposed on the accused is also confirmed.
Aggrieved by the conviction and sentence imposed by the
Trial Court, which is confirmed by the Appellate Court, this
revision is filed.
5. Heard Adv. Sri. P K Mohanan, who appeared for the
accused and also Adv. Sri. V A Johnson for the complainant.
6. The counsel for the accused relied on the judgment
of this Court in Saju’s case (supra) and submitted that, in this
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case, the statutory notice under Section 138(b) of the NI Act
is not served on the accused but served to another person.
Therefore, the counsel submitted that the accused is entitled
acquittal. Adv. Sri. Johnson, who appeared for the
complainant, submitted that the dictum laid down by this
Court in Saju’s case (supra) requires reconsideration.
7. Adv. Johnson submitted that, the Apex court in
C.C.Alavi Haji‘s case (supra), M/s Indo Automobiles case
(supra), and in Vinod Shivappa‘s case (supra) considered the
principle “giving notice” as per Section 138(b) of the Negotiable
Instruments Act. The counsel also relied on the judgment of this
Court in Sarath’s case (supra) and Komala Unnikrishnan’s
case (supra) and submitted that the principles laid down by this
Court in Saju’s case (supra) are without referring to the decisions
of the Apex Court and this Court. Hence, the principle laid down by
this court in Saju’s case (supra) requires reconsideration, is the
submission.
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8. I will consider this point in detail. In Saju’s case
(supra), this Court relying on the judgment of the Apex Court in
Thomas M.D v P.S.Jaleel and Another [2009 KHC 4398] held
that, service of notice to the relatives of the accused is not
sufficient especially when there is no evidence from the side of the
complainant that, the accused was aware of the service of notice
on his relatives. This Court also observed that, if there is no such
evidence regarding the knowledge of the accused about the notice,
it is to be presumed that a statutory notice under Section 138(b)
of NI Act is not served on the accused. The relevant portion of the
judgment is extracted hereunder:
9. From the above-extracted passage in the evidence
of PW1, it is clear that the notice was served on the
relative of the accused. PW1 has no case that the
accused has knowledge of the receipt of the notice by
his relative. If that is the case, it can be presumed at
least that there is constructive notice. There is no such
case for the complainant. If that is the case, it cannot be
said that there is any service of notice to the petitioner.
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Moreover, there is no substantial compliance with
Section 138(b) of the Act either.
10. The Apex Court in Thomas M.D. v. P.S. Jaleel and
Another [2009 KHC 4398] has considered a similar
situation. Paragraphs 4 and 5 of the said judgment read
thus:
“4. Learned counsel for the appellant argued
that his client’s conviction is liable to be set
aside because before filing complaint, the
respondent did not serve upon him notice as
per the requirement of cl.(b) of proviso to
S.138 of the Act. He submitted that service of
notice on the appellant’s wife cannot be
treated as compliance of the mandate of law.
Learned counsel for respondent No.1 did not
dispute that the notice issued by his client
was, in fact, served upon the appellant’s wife
but argued that this should be treated as
sufficient compliance of the requirement of
giving notice of demand.
5. S.138 deals with the dishonour of cheque
for insufficiency, etc., of funds in the accounts
of the person who draws the cheque and lays
down that such person shall be deemed to
have committed an offence and shall, without
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prejudice to any other provisions of this Act,
be punished with imprisonment for a term
which may be extended to two years, or with
fine which may extend to twice the amount of
the cheque, or with both. Proviso to S.138
specifies the conditions which are required to
be satisfied before a person can be convicted
for an offence enumerated in the substantive
part of the section. Cl. (b) of the proviso to
S.138 cast on the payee or the holder in due
course of the cheque, as the case may be, a
duty to make a demand for payment of the
said amount of money by giving a notice in
writing, to the drawer of the cheque, within
thirty days of the receipt of information by him
from the bank regarding the return of the
cheque as unpaid. In the present case, the
notice of demand was served upon the wife of
the appellant and not the appellant. Therefore,
there is no escape from the conclusion that
complainant – respondent had not complied
with the requirement of giving notice in terms
of cl.(b) of proviso to S.138 of the Act.
Unfortunately, the High Court overlooked this
important lacuna in the complainant’s case.
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Therefore, the conviction of the appellant
cannot be sustained.”
11. Therefore, the service of notice on the relative of
the accused is not sufficient, especially when there is
no evidence from the side of the complainant that
the accused was aware of the service of notice on his
relative. If there is no such evidence, it is to be
presumed that the statutory notice under Section
138(b) of the Negotiable Instruments Act, 1881 is
not served on the accused. The upshot of the above
discussion is that the conviction and sentence
imposed on the petitioner are to be set aside.”
9. The main contention of the complainant is that, this
Court has not considered the dictum laid down by the Supreme
Court in three decisions and also the dictum laid down by this
Court in two decisions. I will consider all those cases hereinafter.
The counsel for the complainant relied on the judgment of Vinod
Shivappa‘s case (supra) and contended that, if notice is sent at
the correct address, there is a presumption in favour of the
complainant that the notice is served. Therefore, once the
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complainant proves that notice is sent to the accused at the correct
address, the accused cannot contend that, he has not received the
notice. It will be better to extract the relevant portion of Vinod
Shivappa‘s case.
“13. If a notice is issued and served upon the drawer of
the cheque, no controversy arises. Similarly if the notice is
refused by the addressee, it may be presumed to have
been served. This is also not disputed. This leaves us with
the third situation where the notice could not be served on
the addressee for one or the other reason, such as his non
availability at the time of delivery, or premises remaining
locked on account of his having gone elsewhere etc. etc. If
in each such case the law is understood to mean that there
has been no service of notice, it would completely defeat
the very purpose of the Act. It would then be very easy for
an unscrupulous and dishonest drawer of a cheque to
make himself scarce for sometime after issuing the cheque
so that the requisite statutory notice can never be served
upon him and consequently he can never be prosecuted.
There is good authority to support the proposition that
once the complainant, the payee of the cheque, issues
notice to the drawer of the cheque, the cause of action to
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file a complaint arises on the expiry of the period
prescribed for payment by the drawer of the cheque. If he
does not file a complaint within one month of the date on
which the cause of action arises under clause (c) of the
proviso to S.138 of the Act, his complaint gets barred by
time. Thus, a person who can dodge the postman for
about a month or two, or a person who can get a fake
endorsement made regarding his non availability can
successfully avoid his prosecution because the payee is
bound to issue notice to him within a period of 30 days
from the date of receipt of information from the bank
regarding the return of the cheque as unpaid. He is,
therefore, bound to issue the legal notice which may be
returned with an endorsement that the addressee is not
available on the given address.
14. We cannot also lose sight of the fact that the drawer
may by dubious means manage to get an incorrect
endorsement made on the envelope that the premises has
been found locked or that the addressee was not available
at the time when postman went for delivery of the letter.
It may be that the address is correct and even the
addressee is available but a wrong endorsement is
manipulated by the addressee. In such a case, if the facts
are proved, it may amount to refusal of the notice. If the
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complainant is able to prove that the drawer of the cheque
knew about the notice and deliberately evaded service and
got a false endorsement made only to defeat the process
of law, the Court shall presume service of notice. This,
however, is a matter of evidence and proof, Thus even in a
case where the notice is returned with the endorsement
that the premises has always been found locked or the
addressee was not available at the time of postal delivery,
it will be open to the complainant to prove at the trial by
evidence that the endorsement is not correct and that the
addressee, namely the drawer of the cheque, with
knowledge of the notice had deliberately avoided to
receive notice. Therefore, it would be pre-mature at the
stage of issuance of process, to move the High Court for
quashing of the proceeding under S.482 of the Code of
Criminal Procedure. The question as to whether the service
of notice has been fraudulently refused by unscrupulous
means is a question of fact to be decided on the basis of
evidence. In such a case the High Court ought not to
exercise its jurisdiction under S.482 of the Code of
Criminal Procedure.” (Underline supplied)
10. First of all, it is to be noted that the principles laid down
by the Apex Court are about the Jurisdiction of the High Court
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under Section 482 to quash the proceedings based on the
contention that the notice is not served. The Apex Court observed
that, if notice is served upon the drawer of the cheque, no
controversy arises, and similarly, if the notice is refused by the
addressee, it may be presumed to have been served. The Apex
Court while considering the third situation observed that, where
the notice could not be served on the addressee for one or other
reason such as his non availability at the time of delivery or
premises remaining locked on account of his having gone
elsewhere etc, and if in each such case the law is understood to
mean that there has been no service of notice, it would completely
defeat the very purpose of the Act. There is no dispute with the
above dictum laid down by the Apex Court. The point decided by
the Apex Court in Vinod Shivappa‘s case relates to situations in
which the notice is returned with an endorsement that the non-
availability of the addressee or premises remaining locked on
account of the addressee having gone elsewhere etc. The Apex
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Court has not considered the situation in which the notice is served
to a third person other than the accused, and there is no evidence
before the court to the effect that the accused was aware of the
notice served to the third person. As I mentioned earlier, the
above dictum was laid down by the Apex Court in a challenge
against an order passed by the High Court in a petition under
Section 482 Cr.P.C. This Court in Saju’s case was considering a
revision against the conviction and sentence after trial. This Court,
after considering the evidence available, held that there is no
material to show that the accused received the notice and there is
material to show that, the notice was served to a third person. In
other words, this court clearly stated in Saju’s case (supra) that,
the service of notice on the relative of the accused is not sufficient
when there is no evidence from the side of the complainant that
the accused was aware of the service of notice on his relative.
That is the principle laid down by the Apex Court in Thomas MD’s
case (supra). Moreover, Thomas MD‘s case (supra) is
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not overruled or considered by the Apex Court in Vinod
Shivappa‘s case (supra). Therefore, I am of the considered
opinion that the principle laid down by this Court in Saju’s
case (supra) is not against the dictum laid down by the Apex
Court in Vinod Shivappa‘s case (supra).
11. The 2nd decision relied on by the complainant is CC
Alavi Haji‘s case (supra). In CC Alavi Haji‘s case (supra), a
three-member bench of the Apex Court was considering a
question referred by a two-member bench of the Apex Court.
The question referred by the two-member bench of the Apex
Court is narrated in paragraph 2 of the judgment in CC Alavi
Haji‘s case (supra).
“2. The matter has been placed before the three Judge
Bench in view of a Reference made by a two Judge Bench of
this Court, pertaining to the question of service of notice in
terms of Clause (b) of proviso to S.138 of the Negotiable
Instruments Act, 1881 (in short ‘The Act‘). Observing that
while rendering the decision in D. Vinod Shivappa v. Nanda
Belliappa, 2006 SCC (6) 456 : 2006 KHC 840 : 2006 (3) KLT
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94 : AIR 2006 SC 2179 : JT 2006 (11) SC 187 : 2006 (2) KLD
612 : 2006 (3) SCC (Cri) 114 : 2006 CriLJ 2897 : 2006 (130)
DLT 534, This Court has not taken into consideration the
presumption in respect of an official act as provided under
S.114 of the Indian Evidence Act, 1872, the following
question has been referred for consideration of the larger
Bench:
Whether in absence of any averments in the complaint to the
effect that the accused had a role to play in the matter of non
receipt of legal notice; or that the accused deliberately
avoided service of notice, the same could have been
entertained keeping in view the decision of this Court in
Vinod Shivappa‘s case (supra)?”
12. The decision of the Apex Court in CC Alavi Haji’s
case (supra) is an answer to the question referred to above.
In other words, in CC Alavi Haji‘s case (supra), the question
decided by the Apex Court is whether any averments in the
complaint to the effect that the accused had a role to play in
the matter of non-receipt of legal notice or that the accused
deliberately avoided service of notice is necessary, in the light
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of Vinod Shivappa‘s case (supra). That is not the situation in
Saju’s case (supra). That was a case, which was decided by
this Court against the final judgment by which the accused
was convicted and sentenced by the trial court, which was
confirmed by the appellate court. Moreover, in CC Alavi
Haji‘s case (supra), the Apex Court in paragraph 6 observed
like this :
“Therefore, the observance of stipulations in quoted Clause (b)
and its aftermath in Clause (c) being a pre condition for
invoking S.138 of the Act, giving a notice to the drawer before
filing complaint under S.138 of the Act is a mandatory
requirement. ”
13. Therefore, in CC Alavi Haji‘s case (supra), the Apex
Court clearly stated that giving notice to the drawer before filing a
complaint under Sec. 138 of the Act is a mandatory requirement. If
it is proved by the accused in the trial that the notice was not
received by him and he has no knowledge about such notice, there
is a violation of the provision, and consequently, the prosecution
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will not stand. In CC Alavi Haji‘s case (supra), the Apex Court
also considered the decision in K.Bhaskaran v. Sankaran
Vaidyan Balan and Anr. [AIR 1999 SC 3762] and observed that
giving notice is a process of which receipt is the accomplishment.
It is for the payee to perform the former process by sending the
notice to the drawer at the correct address, and for the drawer to
comply with clause (c) of the proviso to Sec. 138 of the NI Act. If
the complainant proved that notice was issued at the correct
address, there is a preliminary presumption in favour of the
complainant. But, if the accused proves based on the evidence of
the complainant himself that the notice is not served to the
accused, but to a third person and the accused is not aware of the
same, there is no “accomplishment” as observed by the Apex Court
in CC Alavi Haji‘s case (supra) and K.Bhaskaran‘s case (supra).
It is true that in CC Alavi Haji‘s case (supra), the Apex Court
observed that the court should not adopt an interpretation which
helps a dishonest evader and clips an honest payee, as that would
defeat the very legislative measure. The Apex Court also observed
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that the thrust in the clause is on the need to “make a demand”,
which is only the mode for making such a demand, which the
legislature has prescribed. A payee can send the notice for doing
his part for giving notice. Once it is dispatched, his part is over,
and the next depends on what the sendee does.
14. If the sendee proves that the notice is not received by
him but by a third person and he is not aware of the receipt of the
notice by the third person, it cannot be said that there is sufficient
compliance with Section 138(b) of the NI Act. The Apex Court in
C.C.Alavi Haji‘s case (supra) observed that service of notice is
deemed to have been effected on the sendee unless he proves that
it was not really served and that he was not responsible for such
non-service. That is what was stated in Saju’s case (supra). Facts
in Saju’s case (supra) are that the notice is served to a relative of
the accused, and the complainant has not adduced any evidence to
show that the accused is aware of the notice, even though it is
challenged. Therefore, relying on the principle laid down by the
Apex Court in Thomas‘s case (supra), this Court observed that
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service of notice on the relative of the accused is not sufficient,
especially when there is no evidence from the side of the
complainant that the accused was aware of the service of notice on
his relative. In C.C.Alavi Haji‘s case (supra), the Apex Court
observed that if the complainant is able to prove that the drawer of
the cheque knew about the notice and deliberately evaded service
and got a false endorsement made only to defeat the process of
law, the Court shall presume service of notice. But it is clearly
observed in paragraph 9 of C.C.Alavi Haji‘s case (supra) that the
same is a matter of evidence and proof. Therefore, the Apex Court
observed that in a case where the notice is returned with the
endorsement that the premises has always been found locked or
the addressee was not available at the time of postal delivery, it
will be open to the complainant to prove at the trial by evidence
that the endorsement is not correct and that the addressee,
namely the drawer of the cheque, with knowledge of the
notice had deliberately avoided to receive notice. Therefore,
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the Apex Court observed that it would be premature at the
stage of issuance of process to move to the High Court for
quashing of the proceedings under Section 482 of the Code of
Criminal Procedure. The question as to whether the service of
notice has been fraudulently refused by unscrupulous means
is a question of fact to be decided on the basis of evidence
and in such a case the High Court ought not to exercise its
jurisdiction under Section 482 of the Code of Criminal
Procedure is the dictum laid down by the Apex Court in
C.C.Alavi Haji‘s case (supra). That principle is not at all
applicable in the dictum laid down by this Court in Saju’s
case (supra). In Saju’s case (supra), it is a revision against
the conviction and sentence. The complainant adduced
evidence. Based on the evidence, this Court held that there is
no explanation or evidence from the side of the complainant
that the notice was served to the accused, and the evidence
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only shows that it was served to a third person. In such
circumstances, this Court held that the mandatory notice was
not served to the accused.
15. In C.C.Alavi Haji‘s case (supra), the Apex Court
also considered Section 27 of the General Clauses Act, 1897
(for short, G.C Act) and held that; where the payee dispatches
the notice by registered post with correct address of the
drawer of the cheque, the principle in Section 27 of the G.C.
Act would be attracted and the requirement of Clause (b) of
proviso to Section 138 of the Act stands complied with and
cause of action to file a complaint arises on the expiry of the
period prescribed in Clause (c) of the said proviso for payment
by the drawer of the cheque. But it is clearly stated by the
Apex Court in paragraph 10 of the judgment in C.C.Alavi
Haji‘s case (supra) that, it would be without prejudice to the
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right of the drawer to show that he had no knowledge that the
notice was brought to his address.
16. The counsel for the petitioner, relying on
paragraphs 14 and 15 of the judgment in C.C.Alavi Haji’s
case (supra), submitted that the burden is on the accused to
prove that the notice is not served to him. It will be better to
extract paragraphs 14 and 15 of the above judgment:
“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 unserved, 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
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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. Hiralal & Ors. And V.Raja Kumari Vs.
P.Subbarama Naidu & Anr.] 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 unserved.
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 G.C. 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
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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. 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.”
17. As far as the burden to the accused to rebut the
preliminary presumption based on Section 27 of the General
Clause Act is concerned, it stands settled in the light of the
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dictum laid down in the above judgment. But if, on the
evidence of the complainant itself, it is proved that the notice
is served to a third person and there is no explanation for the
complainant to the effect that the accused was aware of
such serving of notice to the third person, it cannot be said
that there is service of notice. Hence, I am not in a position to
say that the dictum laid down by this Court in Saju’s case
(supra) is against the principle laid down by the Apex Court in
C.C.Alavi Haji‘s case (supra) because in Saju’s case
(supra) this Court was considering the revision against
conviction and sentence in which the complainant has no case
that the service of notice to a third person/relative of the
accused was within the knowledge of the accused. Moreover,
Thomas MD‘s case (supra) judgment was delivered
subsequent to C.C. Alavi Haji‘s case (supra) judgment.
18. Then the learned counsel for the petitioner relied on
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paragraph 17 of C.C. Alavi Haji‘s case (supra) and
submitted that if notice is not received by the accused, he can
pay the amount once the summons is received from the court.
It will be better to extract paragraph 17 of C.C. Alavi Haji’s
case (supra), which reads thus :-
“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 S. 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 S.
138 of the Act, cannot obviously contend that there was
no proper service of notice as required under S. 138, by
ignoring statutory presumption to the contrary under
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S.27 of the G.C. Act and S. 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‘s case (supra), 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 S. 138 of the Act.”
19. The Apex Court was considering a situation where a
debt is admitted, and the accused is not getting a chance to
pay the debt. In such a situation, the Apex Court observed
that once the summons is received, the accused can offer the
amount within 15 days of the receipt of the summons and
close the case. But, that is not the situation where the debt is
disputed and the entire case of the complainant is alleged as
false. In such cases, if a pre-condition notice is received, the
accused can warn the complainant that the allegation in the
complaint is false and if any prosecution is initiated, he will
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take appropriate steps against the complainant. Therefore, in
cases where the debt and transaction which leads to the
issuance of a cheque is disputed, paragraph 17 of the dictum
laid down by the Apex Court is not applicable. That is a
situation where the debt is admitted, and the accused is not
getting notice before initiating prosecution. Therefore, I am of
the considered opinion that the dictum laid down by this Court
in Saju’s case (supra) is not against the principle laid down
by this Court in C.C. Alavi Haji‘s case (supra).
20. Then the learned counsel relied on the judgment in
M/s. Indo Automobiles’ case (supra). That was also a case
in which the Apex Court was considering a situation in which
High Court quashed the proceedings on the ground that no
notice was served to the accused. The Apex Court observed
that the same is a matter of evidence, and the High Court
erred in quashing the proceedings, and it is well settled that
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once notice has been sent by registered post with
acknowledgement due at the correct address, it must be
presumed that the service has been made effective. That is
not the case in Saju’s case (supra). Therefore, the dictum
laid down in Saju’s case (supra) is not against the dictum
laid down by the Apex Court in M/s. Indo Automobiles’
case (supra).
21. The other decisions relied on by the complainant are
the decisions of this Court in Komala Unnikrishnan’s case
(supra) and Sarath C.’s case (supra). This Court anxiously
considered those decisions also. In Sarath C.’s case (supra),
this Court was considering the situation where there is
evidence to show that the accused was deliberately evading
notice and the notice was returned with an endorsement
“unclaimed”. But, in Saju’s case (supra), that is not the
situation, and in that case, the complainant admitted that the
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notice was issued to a 3rd person, and there was absolutely no
evidence from the side of the complainant to the effect that
the accused was aware that the notice was served to the 3rd
party. Therefore, I see no contradiction in the dictum laid
down by this Court in Saju’s case (supra) on one side and
the decision of this Court in Sarath C.’s case (supra). It is
true that, in Komala Unnikrishnan’s case (supra), this
court observed that, ‘….since there is evidence to show that the
1st respondent sent notice to the revision petitioner in her two
address, 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’ . With
great respect, I cannot agree with the above observation in
the light of the dictum of the apex court in Thomas MD’s
case (supra). If the accused challenges the non-receipt of
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notice, the burden shifts to the complainant to prove at least
the knowledge of the notice to the accused. The decision in
Thomas MD‘s case (supra) was not considered in Komala
Unnikrishnan’s case (supra), and therefore the above
observation in Komala Unnikrishnan’s case (supra) is per
incuriam.
22. In the light of the above discussion, I see no reason
to reconsider the dictum laid down by this Court in Saju’s
case (supra). Now, I will consider the facts in this case. This
Court perused the evidence adduced by the complainant, who
was examined as PW1. A specific question was put to the
complainant in the chief examination to the effect that Ext.P3
is not a legal notice and the same was not received by the
accused. He indeed denied the same, but Ext.P5 is the postal
acknowledgement card. As per the postal acknowledgement
card, notice is received by one ‘Amina’. The complainant in
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the re-examination deposed that Ext.P3 notice was sent to the
correct address of the accused, and in Ext.P5, the notice was
received by the mother of the accused, who is ‘Amina’.
23. But in the further cross-examination by the accused,
PW1 denied the suggestion that ‘Amina’ is the sister of PW1.
But, she only states that notice was sent, and she has no case
that the accused is aware of the receipt of notice by ‘Amina’.
Unless there is evidence to show that the accused is aware of
the notice sent by the complainant, this Court cannot conclude
that notice is served to the accused. I can understand if PW1
deposed that even though notice is served to ‘Amina’, the
accused is aware of the same, the burden shifts back to the
accused to prove that he was not aware. But there is no such
case to the complainant that the accused was aware of the
receipt of notice by ‘Amina’. It is proved beyond reasonable
doubt, in the light of Ext.P5, that ‘Amina’ received the notice.
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In such circumstances, I am of the considered opinion that
there is no service of notice to the accused, and it is served to
another person and there is no evidence to show that the
accused was aware of the service of notice to the 3 rd person.
In the light of the same, the principle laid down by this Court
in Saju’s case (supra) is squarely applicable in this case also.
24. The upshot of the above discussion is that the
conviction and sentence imposed on the revision petitioner are
to be set aside.
Therefore, this Criminal Revision Petition is allowed. The
conviction and sentence imposed on the revision petitioner as
per the judgment dated 16.02.2023 in Crl.Appeal No.175 of
2019 of the Court of Third Additional District and Sessions
Judge, Palakkad and the judgment dated 10.07.2019 in S.T.
No.114 of 2017 of the Court of Judicial First Class Magistrate
II, Alathur are set aside. The revision petitioner is acquitted.
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If any amount is deposited by the revision petitioner as per
the interim order passed by this Court or the appellate court,
the same should be returned to the Revision Petitioner
forthwith.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
nvj
SSG
SKS
JV
jvt
DM