Mr. Justice N.K. Balakrishnan
1. The complainant is in appeal. His complaint filed u/s 138 r/w 142 of Negotiable Instruments Act ended in acquittal u/s 255(1) of Cr. P.C. The case of the prosecution is that the accused owed an amount of Rs. 60,000 and to discharge that debt Ext. P-2 cheque dated 18-3-2004 was issued. When presented for encashment, it was dishonoured on the ground of insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent by registered post on 12-4-2004. The registered postal cover was returned ''unclaimed''. That returned postal cover, Ext. P-5, was delivered to the complainant only on 27-4-2004, The complaint was filed on 3-6-2004. The court below found that the period should be reckoned from 15-4-2004 itself which was the date on which the notice was stated to have been refused or unclaimed by the addressee. Accepting that contention, the learned Magistrate acquitted the accused u/s 255(1) of Cr. P.C. The short, but important question that arises in this case is whether the period prescribed for filing complaint u/s 142 of Negotiable Instruments Act should commence from 15-4-2004 - the date on which the notice was refused or left unclaimed; or whether it should commence from 27-4-2004--the date on which the refusal was notified by delivering the returned postal cover.
2. Exhibit P-5, the returned postal cover shows that the postman served an intimation on 15-4-2004 so as to enable the addressee to collect the postal articles registered in his name. According to the accused, since the notice was ultimately returned unserved, it must be presumed that the addressee refused to receive the notice on 15-4-2004 itself and hence that date should be reckoned as the date from which period of 15 days for effecting payment of the cheque amount to the complainant should be computed.
3. That contention, according to the complainant, is fallacious since the complainant can come to know as to the date on which the notice was unclaimed by the accused/addressee only when the returned postal cover is delivered to the sender of the notice. Most often the endorsement made by the postman may not be so legible so as to enable the sender to decipher therefrom the exact date on which the notice was refused by the addressee. There may also be instances when such postal articles are misplaced or otherwise retained or kept inadvertently in the post office itself and reach the hands of the sender of the notice only after 2 or 3 weeks.4. What the provision requires is that the payee has to make a demand by giving notice in writing. The offence would be complete only if the drawer fails to pay the cheque amount within 15 days of the receipt of the said notice. If that be so, the material and relevant date for accrual of cause of action would be the expiry of the period, as aforesaid, from the date of receipt of the notice by the drawer. But at the same time it cannot be forgotten that the complainant being the sender of the notice cannot be asked to go to the post office of the addressee/destination on all days to know the actual date of service or refusal of the notice by the addressee. That date of deemed service, will not invariably be known to the sender of the notice. The knowledge of such refusal or returning of the notice as unclaimed can be imputed to the sender only when he gets the returned postal cover.
5. The contention raised by the accused is that the date of deemed service, should be taken as the date when the postman made the endorsement, that the addressee refused or returned unclaimed. If that view is taken then sometimes, if the postal cover is not returned to the sender within a reasonable time, it would create confusion and unnecessary hardship to the payee. Therefore, there is merit in the submission made by the Learned Counsel for the complainant that the expression "the date of receipt of the said notice" in proviso (c) to Section 138 of N.I. Act should receive a very reasonable, practical and realistic interpretation and not an interpretation which would create confusion or which is likely to defeat the very object of the provision.
6. The presumption of ''deemed service'' should be drawn reckoning the date on which the sender of the notice was notified that the notice has not been served and hence the limitation for filing complaint should commence from the date of deemed service; namely, the date when the complainant received the returned postal cover or was so informed by the postal authority in case the postal cover was lost.
7. The decision in Ibrahimkutty Haji v. State of Kerala 2006 K.H.C. 1386 has been relied upon by the Learned Counsel for the complainant. In that case the returned notice was delivered to the complainant on 21-7-1998. But it was also found in that case that the intimation was given to the addressee on 4-7-1998. The notice has to be retained in the post office for six days. If so, it was held that the notice could have been returned by the postman only on 10-7-1998. Therefore, the drawer had time for payment up to 25-7-1998. Since the complaint was filed on 19-8-1998, it was found to be well within time and thus the Learned Counsel for the respondents submits that the facts dealt with by the court in that case are entirely different. It is further submitted by the Learned Counsel that in the factual background of that case the observation made in that judgment that the presumption of deemed service should be drawn reckoning the date on which the notice was delivered with the endorsement ''refused'' or ''unclaimed'' cannot be treated as the ratio. I cannot accede to that submission. Even though the court has dealt with the matter in another angle, the ratio laid down by the court was that the presumption should be that period in such cases could commence only when the complainant was notified of the factum of refusal; when the returned postal cover was delivered to the sender. The decision in Ibrahimkutty Haji''s case cannot thus be treated as ''obiter''.
8. Another Bench of this Court has also taken the same view in Gopalakrishnan v. Noorjahan 2011 (3) K.H.C. 48. It is pointed out by the Learned Counsel for the complainant that since the cause of action arose after the amendment was introduced enabling the complainant to file a petition for condonation of delay, there was no difficulty for the complainant to file a petition for that purpose but only because the presumption of deemed service can be drawn reckoning the date of delivery of the returned postal cover, the complaint was filed without filing a petition for condonation of delay.
9. It was held by this Court in
Normally the presumption of deemed service can and need be drawn only when the notice sent by the complainant is received back by him without service. Of course there may be exceptional cases where the complainant sleeps over his rights and does not make enquiries about the notice sent by him. If within a reasonable time the notice is not returned, the complainant is certainly expected to make enquiries. If he does not draw the presumption of due service at the appropriate time by being indifferent to his own rights, such a complainant may not be justified in insisting that the presumption of due service can be drawn only if and when he gets the notice sent by him returned to him unserved. But in all other cases where the notice sent is returned to the sender within a reasonable time, such sender will be obliged to invoke the presumption of due service only on the date on which the sender receives back the returned notice.
It was further observed:
In actual practice I find that the postal authorities do show such indulgence to addressees who make request to retain such articles till such date when the addressee will be able to receive it. In these circumstances according to me it would be puerile to expect a sender to invoke the presumption of due service even before he realises and is satisfied that there is no actual service. Otherwise, a sender will have to be at the post office of destination making enquiries as to whether the notice sent by him has been served or not and whether he should invoke the presumption of due service. That cannot of course be the law. It would be unjust, inequitable, unreasonable and perverse to expect the complainant to invoke the presumption of due service even before he is satisfied reasonably that such notice has not actually been served. The interpretation that the presumption of due service will arise only when the sender gets back the returned notice does appear to me to be just, reasonable, equitable and practically prudent.
10. Here, it is not a case where the sender slept over his remedy for an unreasonably long period. Notice was sent on 12-4-2004. The complainant got it back on 27-4-2004. It is not an unreasonably long period so as to contend that the complainant was not diligent. It is pointed out by the complainant that notice must have reached the post office on 13-4-2004 or 14-4-2004, 14-4-2004 must be a public holiday. So in the normal course the intimation could have been given by the postman only on 15-4-2004. The postal articles were to be retained for 7 days and it can be returned only thereafter. Since on the 7th day the addressee did not approach to receive the postal articles, it must have been returned on 22-4-2004. It was thereafter delivered to the sender on 27-4-2004. Therefore, it cannot be said that there was unreasonable delay in delivering the returned postal cover. Had it been a case where the sender did not get postal acknowledgement or the letter sent by registered post returned to him within a reasonable time, when it should have been delivered to the sender, then it could have been said that there is a duty cast on the sender to address the postal authorities to ascertain whether notice was served and if so the date of service of the notice or whether the notice was returned refused/unclaimed and, if so, what happened to the returned postal articles. Such a situation did not arise in this case. There may be cases where the refused or unclaimed postal articles were not delivered to the sender after one or two months. In such cases if the sender did not take steps to ascertain what actually transpired then perhaps the position may be different. But that is not the case here. In the light of what has been stated above, the contention that 27-4-2004 should be reckoned as the date of deemed service is well merited. Since the complaint was filed on 3-6-2004 it is found to be well within the time and as such the order of acquittal on the ground of delay in filing the complaint is unsustainable.
11. The learned Magistrate has found that the evidence regarding the transaction averred by the complainant stood proved through the evidence of P.W. 1. The defence attempted to be projected by the accused that he had borrowed a sum of Rs. 10,000 from one Suresh and that there was no transaction between the complainant and Santhosh was found to be unacceptable. The accused when examined as P.W. 2 admitted that Exhibit P-1 cheque was issued but he stated that it was issued to one Santhosh while receiving Rs. 10,000. There was no reason, not to write the name of Santhosh as payee in Exhibit P-1. That is against the normal course of conduct. There was also no reason why he did not specifically note the amount as Rs. 10,000 and the name of payee as Santhosh, if in fact, what was stated by him was true. The evidence given by P.W. 1 was analysed by the court below in the correct perspective and found that the transaction pleaded by him is true and acceptable. Since the amount was admittedly not paid, the conviction must necessarily follow.
12. The Learned Counsel for the respondent/accused submits that at least four months time may be granted to the respondent to pay the amount. This request is resisted by the Learned Counsel for the complainant stating that the case was filed in the year 2004 and so that much time may not be granted. In the result, this criminal appeal is allowed; while reversing the order of acquittal passed by the learned Magistrate, the accused/respondent is found guilty of the offence punishable u/s 138 of N.I. Act and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs. 60,000 (Rupees Sixty thousand only) as compensation to the complainant and in default the respondent/accused will undergo simple imprisonment for two months. The petitioner is granted four months time to pay the amount.
