ORDER
K. Hema, J.
1. Notices were sent to the petitioner in both the cases at hand, under Section 138(b) of Negotiable Instruments Act. Those were returned with the postal endorsement,
'Addressee left India'. Those endorsements are true. He had in fact left India. Admittedly therefore, those were not served on the petitioner, though sent in correct address. Can in such circumstances, those notices be deemed to be served on the petitioner? Can the proceedings initiated against the petitioner under Section 138 of Negotiable Instruments Act be quashed? These are the main questions arising in both the cases before me.
2. The petitioner is the accused in both the above cases. Same questions arise in these cases. Hence these cases are disposed of by this common order. The first respondent Crl.M.C. No. 9013/2002 and Crl.M.C. No. 9017 of 2002 filed complaints against the petitioner, before the Judicial First Class Magistrate Court-I, Thiruvananthapuram under Section 138 of the Negotiable Instruments Act, after complying with the legal formalities under the Negotiable Instruments Act. The Court took cognizance of offence under Section 138 of the Negotiable Instruments Act and those cases were taken on file as C.C.No. 105/2001 and C.C.No. 119/2001.
3. Admittedly, notices issued to the petitioner under Section 138(b) of the N.I. Act were returned in both the cases with the endorsement 'Addressee left India'. Copies of postal endorsements are also produced along with the complaint. The accused produced in these proceedings, copy of passport showing that he was not available in India during relevant time. Learned counsel appearing for the petitioner therefore contended that there is clear proof for the fact that there was no service of notice and also that the petitioner was abroad at the relevant time. Therefore, it is contended that there is no legal notices in the above cases and hence chances of a conviction are bleak. It is also argued that before issuance of summons, the lower Court ought to have considered all these aspects and see whether there are materials on record to disclose ingredients of offence under Section 138 of the N.I.Act, as held in the decision reported in 2001 CCR 260 (SC). The petitioner on these grounds seeks to quash the proceedings initiated by the lower Court against him on the basis of the above complaints, to prevent abuse of process of Court.
4. Learned Counsel appearing for the complainant/first respondent however maintained the strong stand that the proceedings cannot be quashed on any of the grounds stated. It was argued that as per settled position of law, it is sufficient if the notice is issued in the correct address of the drawer of the cheque and notice has to be deemed to be served on the sendee whether it is actually served or not. As per postal records produced along with the complaints, it is proved that notices were sent to the petitioner in correct address and the petitioner himself has no case that the address shown was wrong. Therefore, in the light of the decision reported in Mohammed Ashraf v. Sharafuddin, 2003 (3) KLT SN 77, it was argued that notice can be deemed to be served on the petitioner and he cannot any longer contend that there is no valid notice under the Act. It was also urged whether the notice is actually served or not and whether the petitioner was abroad etc. do not germane for consideration in this case, in the light of the dictum laid down in the above decision.
5. The relevant portion from the above decision in Mohammed Ashraf v. Sharafuddin, 2003 (3) KLT SN 77, can be extracted as follows:
'It is not the law that notice under Section 138 of the N.I. Act must be served on the indictee. Law only obliges the payee to demand payment 'by giving a notice'. It is by now trite that a notice issued in the correct address of the drawer of the cheque by pre-paid post whether served or not is sufficient notice for the purpose of Section 138 of the N.I.Act'.
6. It is true that as held on the above decision, notice issued under Section 138(b) of Negotiable Instruments Act can be deemed to be served on the sendee; if it is proved that it was issued in his correct address. But, the question is, can such an inference be drawn mechanically, under all circumstances, irrespective of the various situations which may arise in each case? Can notices which are admitted to be not served, be deemed to be served? When both parties jointly assert that notices were not served, is there any impropriety in the Court to say that as per law, those can be deemed to be 'served'
7. To answer these questions, I would seek guidance from one of the decisions of Hon'ble Supreme Court. The Supreme Court in Raja Kumari v. Subbarama Naidu, 2004 (3) KLT 799 (SC), was dealing with two different situations - one in which notice was refused and the other in which, notice was returned as addressee being not found. It was considered in detail therein whether there was any significant difference between the above two situations, so far as the presumption of service is concerned.
8. Referring to Section 27 of the General Clauses Act, 1897 and also after analysing the several aspects involved in the issue, the Supreme Court held in Raja Kumari 's case thus:
'No doubt Section 138 of the Act does not require that the notice should be given only by 'post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice'.
9. So, there is a clear and cogent declaration in Raja Kumari's case that notice can be deemed to be served only if the sendee does not prove that notice was actually not served on him and that he was not responsible for the non-service. In other words, in a case where there is clear proof for the fact that notice was actually not served on the sendee and that none of the acts of the accused has contributed to the non-service, it may follow that notice cannot be deemed served. On the mere proof of the facts that the notice was sent in correct address, Court cannot rush to conclude deemed service of notice.
10. Let me clarify the position furthermore. It is well-Settled that burden is on the complainant to prove service of notice in a prosecution under Section 138 of N.I.Act. But, for the purpose of Section 138(b), it is enough if he proves that notice is 'given'. The complainant has to establish not only that notice was sent, but it was sent in correct address of the sendee also. Such proof must be proof beyond reasonable doubt. The burden of the complainant will be discharged primarily by production of postal documents and such other evidence as may be necessary. But, immediately on such proof, Court cannot proceed to confirm that there is deemed service. Before inferring service of notice, the Court is bound to proceed a step further and ascertain certain other facts also, in the light of what the Supreme Court laid down in Raja Kumari's case.
11. That is, the Court will have to confirm (i) whether notice was actually served or not on the sendee and (ii) if the notice was not served, whether sendee was responsible for the non-service. Then, another question will arise. Oh what basis the Court can arrive at the above conclusions? The Court can look into the pleadings on record, evidence adduced in the case by both parties and also evidence if any collected by the Court--both oral and documentary, the materials elicited in cross-examination of witnesses, admissions and denial of parties, statement of the accused under Section 313 Cr.P.C., the conduct of the complainant and that of the accused which may emerge, in evidence in relation to the relevant fact in issue, and all such other legally acceptable materials on record as the Court may deem fit and proper to rely upon, to take, a right decision on the crucial aspects.
12. But then, another question may arise before the Court. What must be the nature of proof required for the above two facts It is needless to say that standard of proof required is not as great as that is to be insisted from the prosecution. It is not proof beyond reasonable doubt. It is only proof on the scale of preponderance of probabilities and possibilities. This is because burden of proof of the above-said two fact is on the accused/sendee. Thus, ultimately if the Court finds on the scale of preponderance of probabilities and possibilities that notice was not actually served on the sendee and that he was not responsible for such non-service, notice cannot be deemed served on the accused.
13. In this context, it would be worthy to examine as to what guided the Supreme Court to lay down that there can be deemed service of notice in cases where the notice is sent in correct address of the sendee. It was held by Supreme Court in Raja Kumari's case that 'any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of Subterfuge by successfully avoiding the notice'. It was also observed in Raja Kumari's case as follows:
'If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind 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.'
14. It is thus clear from the dictum laid down in Raja Kumari's case referred above that the Supreme Court was intending to protect a honest payer as against a dishonest evader. But, what about a foxy complainant who deliberately books an innocent accused by hook or crook? There are cases in which cheques are procured by unlawful and dishonest means, forged and misused against the accused. Instances are not quite rare in which a clever complainant procures a blank cheque from the accused and misuses the same. This can some times occur in a transaction with a financial institution where blank cheques are insisted for payment of money. The accused would be compelled to hand over cheques in a disabled situation, when his need for money will be irresistibly dire.
15. It is likely that an accused is confronted with various inescapable situations wherein he may have to issue signed blank cheques. He may have to rescue the life of his own son or to preserve the marriage of his only daughter. There can be several other commanding circumstances also. Prudence and legal consequences may not caution him at that particular moment. He may become a helpless prey to the heat of his financial strain or poverty. He may therefore under some pressure of urgency or flash of impulse issue blank cheques which will be put to use against him. It would not be unusual to find certain complainants culling out evil designs to coerce an accused by an unjust and illegal demand under threat of securing a conviction under Section 138 of N.I. Act which in these days, may be rather easy.
16. In such cases, the complainant would work out all possible means to defeat the accused. He will assure himself that, notice is returned without actual service. He may wait for the accused to leave his place. It may be a case where the accused would go to another city for an inevitable surgery. He would have gone to another State to pay a visit to his ailing relative. He may be forced to leave his house to a foreign country to eke out his livelihood. He can be away from his correct address for various other genuine reasons. It cannot be said, in all such circumstances that the accused had made himself unavailable, to fraudulently evade notice and defeat his opponent. Will a person normally flee to foreign country, that to by spending huge amount, just to escape from his liability under Section 138 of N.I. Act
17. The Courts must therefore be cautious while dealing with such situations. While safe-guarding the interest of a complainant from a tricky accused who purposely evades notice, in my view, Supreme Court has adequately protected an innocent accused also, from a dishonest complainant. That is why the Supreme Court said in Raja Kumari's case that a notice 'can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service'. According to me, there is a note of caution in that judgement in favour of the accused also. If the accused proves that there was no service of notice and that he was not responsible for non-service, then notice cannot be deemed served. In the above circumstances, I hold that Courts cannot without, application of mind, mechanically infer in every case wherein there is evidence for despatch of notice, that notice is served. Such automatic inference, without understanding the real import of the legal position will result in serious miscarriage of justice.
18. Now, let me come to the facts of this case. According to the petitioner, he is a permanent resident of Vamanapuram, Kerala who is employed in U.A.E. The petitioner was in U.A.E. from 2.5.1999 onwards and he returned only on 19.10.2000. True copy of the Passport is produced as Annexure A-4. Notice sent to the petitioner was returned to the sender with the endorsement 'addressee left India'. In the above circumstances, the petitioner's case is that postal endorsement/Annexure-A3 and the passport details would be sufficient to hold that there was no notice to him as contemplated by the Act.
19. But the fact that notice was despatched is not under dispute. Petitioner has also no case that notice sent to him was not in his correct residential address. But he would contend that notice under Section 138(b) was not served on him and that non-service was due to reasons beyond his control and that he was not in any way responsible for the same. In such circumstances, in the light of the discussions already made by me in the earlier paragraphs, the Trial Court will have to decide whether there was actual service or not and whether petitioner was in any way responsible for non-service etc., after adducing evidence. It is only after appreciation of the relevant facts and evidence that the Court can conclude whether notice can be deemed served or not. It cannot at any rate be done at the initial stage. Learned Counsel for the first respondent also cited a decision in Fakirappa v. Shiddalingappa, 2002 Crl.L.J. 1926 Karnt., in support of the contention that no interference can be made by the Court on the service of notice, before adducing evidence.
20. Summing up my discussions, I hold that in a case in which notice is returned with endorsement 'addressee left India', on the mere production of postal acknowledgment cards and passport alone, it cannot be concluded in the absence of evidence on the relevant particulars that there was no legal notice under Section 138(b) of N.I. Act. The Trial Court has to decide the relevant issue at the appropriate stage after adducing evidence in the light of what is stated in this order. It will be too premature in a case of this nature to hold at this initial stage that there was no sufficient notice under Section 138 of the N.I.Act. In the above facts and circumstances, I find that no interference is possible under Section 482 Cr.P.C. on the grounds raised.
These Criminal Miscellaneous Cases are, therefore, dismissed.