IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 3RD DAY OF AUGUST 2011/12TH SRAVANA 1933 CRL.A.No. 188 of 2005 (D) ------------------------- AGAINST THE ORDER/JUDGMENT IN CRLP.496/2004 DATED 09-08-2004 CC.116/2003 of J.M.F.C.-II(MOBILE),KOTTAYAM APPELLANT(S)/COMPLAINANT: ------------------------ M/S. ULLATTIL AGENCIES, THOUFEEQUE BUILDING, MARKET ROAD, KOTTAYAM DISTRICT REPRESENTED BY ITS PARTNER AND POWER OF ATTORNEY HOLDER JACOB THOMAS. BY ADV. SRI.G.HARIHARAN RESPONDENT(S)/ACCUSED: ---------------------- 1. SOBHANA SABU, POYYAKKARA, POOVANTHURUTH P.O., KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smvd N.K.BALAKRISHNAN, J ----------------------------------------- Crl.A. No. 188 of 2005 ---------------------------------------- Dated this the 3rd day of August, 2011. JUDGMENT This appeal is filed by the complainant against the accused alleging offence u/s 138 of the Negotiable Instruments Act. It was alleged that Ext.P2 cheque was issued by the respondent/accused in discharge of a legally enforceable debt and when presented for encashment, it was dishonoured due to insufficiency of funds and on receipt of the intimation, notice under the proviso (b) to Section 138 of N.I. Act was sent. No reply was sent. Money due under Ext.P1 was also not paid. The accused pleaded not guilty. The complainant got himself examined as PW1 and Exts.P1 to P7 were marked. 2. The learned Magistrate found that Ext.P1 , the copy of the Power of Attorney is only a photocopy and it is not admissible in evidence. It was further found that Ext.P4 intimation relied upon by the complainant to prove that the factum of dishonour was intimated to the complainant only Crl.A. No. 188 of 2004 -: 2 :- on 24/07/2000 is also not acceptable since Ext.P4 does not show the number of the cheque. It was then found that the statutory notice, Ext.P5 was sent beyond the period of 15 days (as the law then stood) as required under the proviso (b) Section 138 and hence the Learned Magistrate acquitted the accused. 3. The learned counsel for the complainant/appellant submits that the learned Magistrate should have found that no reply was sent by the accused denying the liability to pay the amount and so the learned Magistrate is not justified in finding against the complainant on technicalities. Learned counsel further submits that it should have been found that Ext.P4 intimation was actually pertaining to Ext.P2 cheque as it could not be proved by the accused that Ext.P4 was in respect of another cheque. At any rate, it should have been found that the notice was sent within the time prescribed. Hence according to learned counsel , the order of acquittal Crl.A. No. 188 of 2004 -: 3 :- passed by the learned Magistrate is liable to be set aside. 4. This submission made by the learned counsel is resisted by the learned counsel for the respondent who would submit that there is no evidence to show that PW.1 was actually empowerd to prosecute the case since Ext. P1 is neither a certified copy nor the original and as such no reliance can be placed on Ext.P1. The learned counsel further submits that there is no evidence to show that Ext.P4 was actually in respect of the cheque in question especially because the complainant was having so many transactions with so many other persons and so Ext.P4 could have been in respect of any of those cheques. The number of the cheque is not mentioned in Ext.P4. It is further contended that though an attempt was made by the complainant to produce the ledger folio from the bank what was produced in court was found to be unacceptable since it was not certified as provided under the Bankers' Book Crl.A. No. 188 of 2004 -: 4 :- Evidence Act. 5. I have gone through the records also. 6. Even if it is accepted that objection regarding Power of Attorney is not very much attractive still the contention regarding the sending of notice beyond the prescribed period, as highlighted by the learned counsel for the respondent, to fortify his submission that unless the procedural formalities are complied with the prosecution cannot be sustained against the accused, deserves consideration. It is pointed that though the copy of the lawyer notice (Ext.P5) was produced, postal receipt was not produced to show when actually the original of Ext.P5 was sent. It is necessary to find the actual date of sending of notice. That was not produced by the complainant. Ext.P4 does not show the cheque number. It cannot be said that Ext.P4 actually relates to the dis-honour of Ext.P2 cheque. So much so, there is no evidence to show Ext.P5 notice was Crl.A. No. 188 of 2004 -: 5 :- sent within the time prescribed. Hence, the finding entered by the learned Magistrate that the accused is entitled to an order of acquittal requires no inference. In the result, this criminal appeal is dismissed. N.K.BALAKRISHNAN, JUDGE smvd