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KERALA HIGH COURT
N.K. Balakrishnan, J.
K.G. Kailasanathan —Appellant
versus
Sajish Babu @ Kuttan and Anr. —Respondents
Criminal Appeal No. 1227 of 2005
Decided on 30.3.2012
Held: 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.
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.
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. (Paras 5 to 7)
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 was to contend that the complainant was not diligent. It is pointed out by the complainant that notice must have reached the post office on13.4.2004 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. (Para 11)
Result: Appeal allowed.
JUDGMENT
N.K. Balakrishnan, J.—The complainant is in appeal. His complaint filed under Section 138 read with Section 142 of Negotiable Instruments Act ended in acquittal under Section 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 Ex. P2 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, Ex. P5, 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 under Section 255(1) of Cr.P.C.
2. The short, but important question that arises in this case is whether the period prescribed for filing complaint under Section 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.
3. Exhibit P5, 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.
4. 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.
5. 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.
6. 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. A
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