IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 CRL.A.No. 434 of 2005() ----------------------- ST.6518/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... APPELLANT(S)/COMPLAINANT :- ----------------------------------------------- T.J.CHANDI, S/O. T.T.JOHN, THEKKANADIL HOUSE, PATHAR P.O. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM RESPONDENT(S)/ACCUSED AND STATE :- ---------------------------------------------------------- 1. VELAYUDHAN S/O. KUTTIKRISHNAN NAIR, ERIYAD HOUSE, PATHAR P.O., VELLIMUTTOM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.434 of 2005 ----------------------------- Dated this the 11th day of August 2011 J U D G M E N T This appeal is filed by the complainant. The complaint was filed against the first respondent/accused for offence punishable under Sec.138 of the Negotiable Instruments Act. The accused was acquitted under Sec.255(1) Cr.P.C. since there was no proper notice as required under the proviso (b) to Sec.138 of the N.I.Act. This appeal is directed against the said order of acquittal. 2. The learned counsel for the complainant/ appellant submits that the object of issuance of notice is to enable the accused/borrower to pay the cheque amount and if there is evidence to show that the accused had come to know about the bouncing of cheque and that notice was issued to him that would be sufficient compliance for a proper prosecution under Sec.138 of the N.I.Act. The case Crl.A.No.434 of 2005 -: 2 :- was disposed of by the learned Magistrate on 23.12.2004. The learned counsel further submits the fact that the amount was due from the accused to the complainant was not seriously assailed by him. There is sufficient evidence to hold that Ext.P1 cheque for Rs.60,000/- was issued by the accused in discharge of a legally enforceable debt/liability. The accused denied the liability. The learned Magistrate after scrutinising the evidence found that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt. Though it was contended by the accused that he had borrowed only Rs.10,000/- and the said borrowal was in 1999 and it was then he had issued a signed blank cheque as a security that could not be substantiated or probabilised by the evidence adduced by him. The fact that Ext.P1 was signed and issued by him was rightly accepted by the learned Magistrate. The contention that the amount borrowed was only Rs.10,000/- remained in the realm of suggestion alone. On a further scrutiny of the Crl.A.No.434 of 2005 -: 3 :- evidence, I find no reason to differ from the view taken by the learned Magistrate that Ext.P1 was signed and issued by the accused to discharge the debt of Rs.60,000/- as stated by the complainant. 3. The case happened to be decided against the complainant since in the statutory notice, the father's name of the accused was shown as Kuttikrishnan Nair whereas according to the accused his father's name is Narayanan Nair and as such there was no proper notice. The learned counsel for the complainant would submit that notice was returned with the endorsement 'addressee refused' and as such it is to be presumed that the notice was actually tendered to the accused and he deliberately refused that notice knowing fully well that the contents of the notice were against his interest. The learned counsel submits that there was no case earlier that his father was Narayanan Nair and not Kuttikrishnan Nair. To prove that the father's name of the accused is Narayanan Nair, the accused Crl.A.No.434 of 2005 -: 4 :- produced Exts.D1 to D3. 4. The complainant maintains that the father of the accused was known as Kuttikrishnan Nair and that was why in the notice the father's name of the accused was shown as Kuttikrishnan Nair. But except the interested version of PW1 there is no evidence to show that the father of the accused was known as Kuttikrishnan Nair and that nobody did know that in the records, his father's name was shown as Narayanan Nair. If as a matter of fact, there was only one house as Eriyad House within the limits of Pathar Post Office and if Velayudhan, the accused herein was the only person residing in that house that could have been very well proved by examining the Post Man. That was not done. If the father of Velayudhan is known as Kuttikrishnan Nair that also could have been proved by examining atleast one of the neighbours. That was also not done. Since it is found that Ext.P1 was issued by the accused in discharge of a legally enforceable debt, it is just and proper that the Crl.A.No.434 of 2005 -: 5 :- complainant is given opportunity to adduce further evidence in the matter and as such the order of acquittal is to be set aside. In the result, this appeal is allowed in part. The order of acquittal is set aside and the case is remanded to Judicial First Class Magistrate Court, Nilambur for fresh disposal. Both sides are given opportunity to adduce evidence in the matter but only on the specific point mentioned above. The parties will appear before the J.F.C.M., Nilambur on 6.9.2011. N.K.BALAKRISHNAN, JUDGE. Jvt