IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 10TH OCTOBER, 2011 / 18TH ASWINA, 1933 Crl.L.P..No. 787 of 2011 ------------------------------ (ST.2853/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-III,THRISSUR) .................... PETITIONER/COMPLAINANT ------------------------------------------ SANTHOSH,S/O.DEVASSY, MALIYEKKAL HOUSE,KOZHUKKULLY POST, THRISSUR TALUK. BY ADV. SRI.V.BINOY RAM RESPONDENTS(S): -------------------------- 1. M.K.GOPI, S/O.KUTTAPPAN,MULLAKKAL HOUSE, MARATHAKKARA P.O., THRISSUR. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 787 of 2011 ---------------------------------------- Dated this the 10th day of October, 2011 O R D E R The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate in his complaint, acquitted the accused under Section 255(1) of the Cr.P.C. 2. The main reason, for which the learned Magistrate acquitted the accused, is that there is no proper notice as contemplated under Section 138 of the N.I.Act. In paragraph 10 of the judgment, the learned Magistrate has discussed the issue in detail. Ext.P4 is the copy of the notice issued to the accused. It is stated in Ext.P4 that the accused borrowed Rs.1 lakh and towards the part payment of the above loan, the accused issued a cheque. After perusal of Ext.P4 CRL.L.P.NO.787 of 2011 :-2-: notice, the trial court has found that the complainant has not made demand for the payment of the cheque amount and there is no mention regarding the amount of the cheque and the amount to be paid by the accused to the complainant. It is on the basis of the above factual finding, the trial court has concluded that there is no proper notice as contemplated under Section 138 of the N.I.Act. On the basis of the above finding, the trial court further held that no offence under Section 138 of the N.I.Act will lie against the accused. It is also relevant to note that the trial court has found that the accused was a labourer under the complainant and it was further found that it is not clear why a labourer should issue blank cheques to his employer as security. Since the statutory notices are improper and defective, I find no reason to interfere with the findings of the court below that no offence under Section 138 of the N.I.Act will lie against the accused. If that be so, even if an appeal is entertained, there is no possibility for any interference with the above finding and the order of acquittal. CRL.L.P.NO.787 of 2011 :-3-: Therefore, there is no merit in this Crl.L.P. and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.787 of 2011 :-4-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 CRL.L.P.NO.787 of 2011 :-5-: