Kerala High Court

Naveed Akthar Sait vs State Of Kerala on 29 October, 2021

CRL.MC NO. 1618 OF 2021
                                       1


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
               THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
         FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                          CRL.MC NO. 1618 OF 2021
IN ST 111/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, CHERTHALA,
                                ALAPPUZHA
PETITIONER:

              NAVEED AKTHAR SAIT
              AGED 41 YEARS
              S/O.ABDUL KADER SAIT, PROPRIETOR M/S NAAZBAL FOREX
              PRIVATE LIMITED, NARAKATHARA ROAD,
              NEAR SHENOYS THEATRE, ERNAKULAM HAVING THE PERMANENT
              ADDRESS AT FLAT NO.202,
              MAHAVIR TOWER, LBS (MARG), MUMBAI - 400 080.

              BY ADVS.
              LAL K.JOSEPH
              SRI.P.MURALEEDHARAN (THURAVOOR)
              SMT.T.A.LUXY
              SHRI.SURESH SUKUMAR
              SRI.ANZIL SALIM



RESPONDENT/COMPLAINANT:

     1        STATE OF KERALA
              REP. BY THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, PIN - 682 031.

     2        MERMAID MARINE
              AROOR, REPRESENTED BY ITS PROPRIETOR,
              SAJAN AUGUSTINE, AP 11/45, KARIKKANI KALATHIL HOUSE,
              AROOR P.O., CHERTHALA, ALAPUZHA, PIN - 688 534.

              BY ADV SRI.B.PRAMOD

              BY PUBLIC PROSECUTOR SMT.MAYA M N

           THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION

ON 22.10.2021, THE COURT 29.10.2021           PASSED THE FOLLOWING:
 CRL.MC NO. 1618 OF 2021
                                 2




                             ORDER

This Crl.M.C , filed for quashing the proceedings in ST

No.111 of 2019 on the file of the Judicial First Class Magistrate

Court-III, Cherthala, wherein, the petitioner is arrayed as the

accused in Annexure A4 complaint filed by the second

respondent.

2. The petitioner contends that he left India on

12.12.2012, which is evident from Annexure A3 and Annexure

A2 will prove that he had sold his flat on 25.01.2013 and

Annexure A1 would prove that he has vacated his business

premise as early as in January, 2018 and thus he could not

have issued the cheque in question. On 18.02.2016, I.e, the

alleged date of issuance of cheque, as well as on the date when

the notice preceding the institution of the complaint was sought

to be delivered, he was not in India and hence no offence is

made out and on that footing, sought for quashing the

proceedings.

3. Heard Sri.Lal K.Joseph,the learned counsel for CRL.MC NO. 1618 OF 2021

the petitioner, Sri.B.Pramod, learned counsel for the second

respondent and Smt.Maya M.N., the learned Public Prosecutor.

4. Learned counsel for the petitioner drew my

attention to paragraph 1 of the complaint, which is extracted.

" The complainant and the accused knowing each other. The accused borrowed an amount of Rs.9,80,000/-(Nine Lakhs and Eighty Thousand only) for his business purpose from the complainant on condition that the amount will be returned immediately. But the accused failed to keep his words and when complainant demanded the same amount on 18.06.2013 the accused issued a cheque to the complainant bearing Cheque No 132259 of Rs.9,80,000/- (Nine Lakhs and Eighty Thousand only) drawn on I.N.G.Vysya Bank, Ernakulam main branch in favour of the complainant."

5. He submits on the basis of these averments, it

is clear that the cheque was stated to be issued on 18.06.2013,

on which day he was abroad, as evident from Annexure A3, the

relevant pages of the passport. He also submits that the notice

sent to his official address was returned with the endorsement

'addressee left', and not 'unclaimed' as stated in the complaint.

Thus, it is his specific case that neither on the date when he

issued the cheque nor on the date when the notice was CRL.MC NO. 1618 OF 2021

attempted to be served, he was in India, and as such, no

offence could have been charged against him under Section 138

of the NI Act, more particularly, in view of the allegations in

para 1 of the complaint aforementioned.

6. Learned counsel for the respondents, at the

outset submitted that nowhere in the notice or in the complaint

the physical presence of the petitioner was mentioned. The

demand made cannot be understood as the demand made in

person. At any rate, these are all matters which are to be

brought in evidence during the trial and not by way of a petition

under Section 482 of the Code of Criminal Procedure.

7. Learned counsel for the petitioner also relied on

the judgments in Mohd.Akram Siddiqui v. State of Bihar

and Another [2019(13) SCC 350] and Aneeta Hada and

Others v. M/s.Godfather Travels & Tours Pvt.Ltd and

Another (2012 KHC 4244) to support his contention.

8. Learned counsel for the respondents relying on

the judgments reported in Usman v. Muhammed Ali

[2017(3)KLT SN 91(C.No.115)] (Crl.R.P.No.4010 of 2007) ,

Jitendra Kumar and Another v. State of U.P. and Another CRL.MC NO. 1618 OF 2021

(2001 KHC 2423), Prashant Kumar Nimgani v. State of M.P.

and Another (2019 KHC 2624) and Monichan P.V. v. State

of Kerala and Another [2020(3) KHC 200] urged for

dismissing the petition.

9. Having considered the rival contentions, I have

no doubt that the contentions raised seeking quashment of the

complaint are not liable to be countenanced in a petition under

Section 482 Cr.P.C for the singular reason that the questions of

fact urged can only be settled after evidence is taken into

consideration in a trial, more so a plea in the nature of alibi.

The decision relied on by the learned counsel for the petitioner

in Mohd.AkRam Siddiqui (supra) was one in which the

Hon'ble Supreme Court did hold that in an appropriate case,

where the document relied upon is a public document or where

veracity thereof is not disputed by the complainant, the same

can be considered. It is further held in the said decision that on

facts, that at no point of time either before the High Court or

before the Supreme Court any dispute was raised by the

contesting respondent therein, with regard to the passport

documents and immigration papers and since it was not in CRL.MC NO. 1618 OF 2021

dispute that on the said date the accused-appellant was not in

India, the above-referred papers beings public documents were

looked into. It is amply clear that the reason for relying on the

passport and immigration papers was solely for the reason that

they were not disputed at all and the further fact that the

petitioner therein was not in India was also an admitted case.

The position in the instant case is entirely different as the

second respondent does not admit any of the assertions of the

petitioner regarding his non-availability in India to sign the

cheque or about the entries while the notice under Section

138(b) of the NI Act was attempted to be served. The judgment

of the Hon'ble Supreme Court referred above is clearly

distinguishable and it lends no support to the petitioner's

contention in the instant case, as it is obvious that the said

decision which centered round its own facts cannot be a

precedent in the present case which is based on its own facts.

10. I am in total agreement with the submission of

the learned counsel for the respondent that these being

disputed questions of fact cannot be considered in this petition,

on the basis of the documents produced and they can be settled CRL.MC NO. 1618 OF 2021

only at the trial. Regarding the contention that the petitioner

was not in India and the postal article was sent back noting

'addressee left' and it was not a case of 'unclaimed', the learned

counsel for the petitioner relied on the judgment in Monichan

P.V. v. State of Kerala and Another 2020(3) KHC 200], in

which it was held as follows:-

16. The Postal Manuals require persons absenting from or leaving their place of address to places whether inland or abroad, to intimate the concerned post offices about such departure and furnish correct postal address for delivering mails. In the absence of the changes and variations in the postal address being periodically notified, the serving authorities have no option other than to return the communications to the senders themselves as unclaimed with requisite endorsements thereon. The addressee who neglects or fails to inform the changed address with the postal authorities does have, in my opinion, no right to contend that service was not made or attempted in his correct address and presumption of service under Section 27 cannot consequently be drawn against him. A person leaving for abroad owes a duty to the postal authorities to intimate the address details where he desires the registered post sent in his name to be taken for delivery, in his absence from station. Any breach in this respect will certainly entitle the sender to fall back upon the presumption of deemed service under Section 27 and contend that post CRL.MC NO. 1618 OF 2021

was served in the known and correct address of the sendee.

17. The accused has no case that he had made necessary arrangements with the postal authorities before leaving for Saudi Arabia, for receipt of registered posts addressed in his name, in his absence from the station. Nor does he have a case that he had already furnished his foreign address to the appellant before the demand notice was despatched in his known house address. I am satisfied that proof of despatch of Ext.P4 notice in the known house address of the accused entitles the appellant to fall back upon the presumption of deemed service under law and contend that service is proper. The contrary finding of the lower appellate court is therefore, erroneous under law."

11. This decision applies on all fours in the present

case and there is no case for the petitioner that he had

intimated the postal authorities or made any arrangements

before leaving the country regarding the delivery of the postal

articles in his absence. It is also to be noticed that the

contentions of the petitioner in the instant case for quashing the

prosecution if accepted would lead to disastrous consequences.

Every case of this nature can be defeated by such pleas of alibi CRL.MC NO. 1618 OF 2021

and about the receipt of the notice in proceedings under Section

482 of the Cr.P.C. The respondent also gets support from the

judgments in Usman v. Muhammed Ali [2017(3)KLT SN

91(C.No.115)] (Crl.R.P.No.4010 of 2007) and Jitendra Kumar