IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 CRL.A.No.274 of 2008 (D) ------------------------------ ORDER IN CRL.L.P. NO.67/08 DT.28/01/08 CRL.A.NO.330/05 OF II ADDL. SESSIONS JUDGE, KOLLAM ----------------- APPELLANT: COMPLAINANT -------------------------------- R. SADASIVAN PILLAI, SIMI NILAYAM PADINJATTUKIZHAKKU, SOORANAD NORTH, KOLLAM. BY ADV. SRI.RASHEED C.NOORANAD RESPONDENTS: ACCUSED ------------------------------ 1. G. BALAKRISHNA PILLAI THUNDUTHARAYIL PUTHENVEEDU, PALLICKAL MURI PALLICKAL VILLAGE, PALLICKAL P.O., ADOOR. 2. STATE OF KERALA REP. BY GOVT.PLEADER HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.274 of 2008 ------------------------------------------------ Dated this the 8th day of April, 2008 JUDGMENT The complainant in C.C.1153/97 on the file of the Judicial First Class Magistrate's Court, Sasthamcotta is the appellant. He assails in this appeal the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act vide judgment of the Second Additional Sessions Judge, Kollam in Criminal Appeal No.330/05 in reversal of the conviction and sentence passed by the Judicial First Class Magistrate, Sasthamcotta vide judgment dt.03/02/05. The respondent though served has not entered appearance and he remained absent. 2. The only argument that is advanced before me by the counsel for the appellant is that the First Appellate Court has reversed the conviction and sentence passed by the Crl. Appeal No.274 of 2008 -2- trial court on the sole ground that the appellant has not established by production of at least a copy of the notice issued to the first respondent that the legal requirement of demand of the cheque amount has also been satisfied so as to render the complaint under Section 138 of the N.I. Act maintainable. It is true that under proviso (b) to section 138 of the N.I. Act it is up to the appellant to establish that notice was issued to the drawer of the cheque intimating him of the dishonour of the cheque for want of sufficient funds in his account to honour the said cheque and demanding payment of the amount covered by the cheque. But all the same, this is a case in which the complainant who has filed proof affidavit has not been cross examined at all by the defence counsel and despite several postings thereafter no request was also made for cross examination of PW1/the appellant who Crl. Appeal No.274 of 2008 -3- has given evidence as PW1. Further, he had no specific case even in the appeal memorandum filed by him in Criminal Appeal No.330/05 that in the notice received by him under Ext.P5 postal acknowledgment card there was no demand for payment of the amount covered by the cheque. If at all the first respondent who was convicted by the trial court wanted to advance a contention that the notice issued to him is not in compliance with proviso (b) to Section 138 of the N.I. Act he should have produced the notice which he received under Ext.P5 postal acknowledgment card and advanced such a contention. He has not even called upon the appellant to produce a copy of the notice issued to him. 3. Counsel for the appellant submits that what was produced by the appellant in this case were all photostat copies of the cheque and dishonour memorandums and the originals of Crl. Appeal No.274 of 2008 -4- those were produced in civil case filed against the first respondent; that along with that the notice also was produced before the civil court and that only the postal registration receipt and the postal acknowledgment card were produced in this case in original and that had opportunity been afforded, the appellant could have produced a true copy of the notice issued to the first respondent or caused the first respondent to produce the said notice by calling upon him to produce the said original and that the appellate court without affording any such opportunity had disposed of the case acquitting the first respondent and that at least a remand should have been ordered in the circumstances of this case to enable the appellant to show that no defect existed so as to have the first respondent acquitted. Crl. Appeal No.274 of 2008 -5- 4. It is worthy to note that it is for the learned Magistrate who takes cognizance of the offence under Section 138 of the N.I. Act to get satisfied that complaint under Section 138 of the N.I. Act is prima facie shown to be maintainable the appellant/complainant having complied with all statutory requirements for the maintainability of a complaint. The Magistrate who took cognizance of the offence however, did not meticulously apply his mind on that aspect and the trial court also convicted the first respondent/accused. When for the first time it appears to the appellate court that the statutory requirements do not stand complied with especially when the first respondent who was appellant before that court has withheld the notice which he was in possession, an opportunity should have been afforded to the first respondent to prove the contents of the notice received by the first Crl. Appeal No.274 of 2008 -6- respondent under Ext.P5 postal acknowledgment card. The appellant who was convicted by the trial court should not have been granted the benefit and an acquittal when he has withheld the notice received by him and has advanced contentions that the statutory requirements are not complied with for the first time in appeal and during arguments only. 5. In the circumstances, I am of the view that the acquittal of the first respondent by the first appellate court deserves to be set aside and the case remitted back to the first appellate court so as to enable the appellant either to produce copy of the notice issued to the first respondent under Ext.P4 postal registration receipt and received by the first respondent under Ext.P5 postal acknowledgment card or in the alternative to cause production of the original notice received by the first respondent under Ext.P5 postal acknowledgment Crl. Appeal No.274 of 2008 -7- card, so however, that justice can be meted out to the parties. 6. In the result, I set aside the judgment impugned, passed by the Second Additional Sessions Judge, Kollam in Criminal Appeal No.330/05 and remit the appeal back to that court for consideration afresh affording the appellant an opportunity to establish that the notice issued to the first respondent under Ext.P4 and received by him under Ext.P5 is satisfying the requirements under proviso (b) to Section 138 of the N.I. Act. The appellant shall appear before the first appellate court for Criminal Appeal No.330/05 on 22/05/08 and shall also produce a copy of this judgment to enable the first appellate court to abide by the directions above and to dispose of the appeal afresh according to law. The appellant shall take all necessary steps as ordered by the first appellate court to Crl. Appeal No.274 of 2008 -8- have notice served on the first respondent as he has not entered appearance before this Court despite service of notice and consequently, he is not aware of this remand ordered by this Court. The Registry shall forward the entire lower court records back to the first appellate court forthwith so as to enable the appeal being taken up on 22/05/08. K.P.BALACHANDRAN, JUDGE kns/-