SYED HAMID BAFAKY Vs. MOIDEEN
HIGH COURT OF KERALA
SYED HAMID BAFAKY
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(2.)THIS revision is against the orders of the Judicial First Class Magistrate, Thaliparamba, refusing to drop the proceedings instituted against the petitioner for an offence under Section 138 of the Negotiable Instruments Act.
The petitioner, before the trial court took an objection that a notice contemplated under Section 138 was not served upon him and prayed that the proceedings against him be dropped. The learned Magistrate on consideration of the materials placed before him took the view that from the endorsements made on the registered notice the petitioner was only evading service of notice which was actually sent by the complainant. The learned Magistrate held as follows :
"From the endorsement on the registered notice made by the postman and from the postal seals affixed on the letter it is seen that the postal authorities were trying to deliver the notice to the addressee from 5-3-91 till 13-3-91 and the addressee was out of station during 5 days."It is not in dispute that the complainant/respondent sent a notice, but the only dispute is that the notice was not served upon the petitioner. The counsel for the petitioner submits that inasmuch as no notice was served upon him the proceedings under Section 138 of the Negotiable Instruments Act have to be quashed. A similar contention was considered by a learned Judge of this Court in Madhu v. Omega Pipes Ltd. (1994 (1) KLT 441 : (1994 Cri LJ 3439). The learned Judge after considering the law on the subject took the view that the proviso to Section 138 of the Negotiable Instruments Act affords clear indication that "giving notice" in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer on his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expire. Law shall not help the wrong door to take advantage of his tactics. Hence the realistic interpretation for the expression "giving notice" in the present context is that, if the payee has dispatched notice on the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice. It is not in dispute that the address to which the notice was sent is the correct address. The learned counsel relying upon the judgement in Sosamma v. Rajendran (1993 (1) KLT 629) : (1993 Cri LJ 2196) would urge that the Magistrate ought not to have given a finding even at the initial stage on the question that the petitioner was evading notice. It is no doubt true that the general burden to prove the prosecution case, since rests with the complainant, it is necessary for the complainant to prove the facts constituting the sending of notice and its receipt. The tender of the notice by the postal peon at the address of the accused has to be proved and the same could not be actually served due to the culpable default or deliberate evasion of the accused, then the same would constitute "receipt" of notice. The burden to establish those facts rests with the complainant. In the above said judgement the learned single Judge took the view that it is open to the complainant where the notice was returned "un-claimed" to prove the said elements in support of the prosecution case. Sending of notice and the return of the same with an endorsement by the postal authorities is a matter for evidence and the petitioner cannot at this stage say that no notice was sent by the complainant/respondent. The respondent certainly must have a right to prove his case and the petitioner cannot put spoke into the wheels of justice even at the threshold by filing a petition to have the whole proceedings quashed on the allegation that no notice was sent at all to him. Whether any notice was sent by the complainant/respondent and whether the petitioner successfully evaded it being questions of fact I am of the view that the complainant/respondent must be given an opportunity to prove the same before the trial court. This Court exercising powers under Section 482 Crl. P.C. will not interfere and give findings on questions of fact. This revision petition deserves to be dismissed and accordingly it is dismissed. Revision dismissed.
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