IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 CRL.A.No. 157 of 2001() --------------------------------- CC.741/1997 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... APPELLANT: COMPLAINANT ------------------ SATHI, W/O . SREENIVASAN, KOMANKANDI HOUSE, PUTHIYANGADI, KOZHIKODE DIST. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS: ACCUSED ----------------------- 1. UNNIKRISHNAN A.K., MODANNAVAYAL HOUSE, PAVANGADU, KOZHIKODE 21. 2. THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 157 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June, 2008 Judgment Appellant had prosecuted respondent No.1 herein before the Judicial Magistrate of First Class, No. III, Kozhikode for the offence punishable under Section 138 of the Negotiable Instruments Act. After considering the oral and documentary evidence, the trial court held that the case against respondent No.1/accused had not been established by the complainant satisfactorily, inasmuch as no evidence was adduced to show that statutory demand notice had been served on the accused in his correct address or that it had been received by the accused. Accordingly the accused was acquitted. The above order of acquittal passed by the trial court is under challenge in this appeal. 2. The case of the complainant before the trial Court was that the accused who was acquainted with her, had borrowed Rs.52,000/- from her on March 21, 1994 for the purpose of completing certain construction work. The accused had issued Ext.P1 cheque in discharge of the said debt three months after the borrowal. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The complainant alleged that she had issued a statutory demand notice to the accused in his correct address. But the accused failed to either respond to the notice or to discharge the debt. Hence the complaint. 3. The complainant was examined in the case as Pw.1 and a witness was examined as Pw.2. Exts.P1 to P5 were also marked on the side of the complainant. The defence set up by the accused appeared to be that Ext.P1 cheque was stolen by the complainant and her henchmen at the time when they had attacked the STD booth which was being conducted by the wife of the accused. He further contended that the complainant had insulted him using his caste name. A case was registered by the Police against the accused which is still pending before the court. It was primarily contended by the accused that he had not received any statutory demand notice from the complainant in connection with dishonour of the cheque. Cr.A.157/01 2 4. It was noticed by the learned Magistrate that the legal notice, a copy of which is on record as Ext.P3, was sent to the accused in the following address: “Unnikrishnan.A.K., Mudannavayal House, (P.O) Paavangad, Calicut”. But in the photocopy of the ledger extract relating to the account maintained by the accused in the Bank, his address was shown as A.Unnikrishnan, S/o.Mayyan, Kodavankodevayal, P.O. Puthiyangadi, Calicut-21. The same address was shown in the memo filed on behalf of the accused at the time of his appearance through counsel. Similarly the notice was sent to the accused by registered post showing the address as Kodavankodevayal House, Puthiyangadi P.O., Kozhikode. But the accused had failed to claim the notice though intimation was given to him at his residence. Obviously therefore the statutory demand notice was not issued in the address shown in the ledger of the Bank. It is true that the complainant had issued the notice in the address shown in the complaint itself. But the fact remained that the complainant had not adduced any evidence to show that it was the correct address of the accused. Significantly the complainant had not produced the postal acknowledgement card which would have been the best piece of evidence to show that the statutory demand notice had been served on the accused. 5. Having heard learned counsel for the petitioner and having perused the materials available on record, I do not find any reason to interfere with the order of acquittal passed by the court below. The appeal fails and it is accordingly dismissed. A.K. BASHEER Judge an.