IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 CRL.A.No.160 of 2008 (D) ------------------------------ AGAINST THE ORDER IN CRL.L.P.1/2008 ST.53/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, VATAKARA. .................... APPELLANT: COMPLAINANT -------------------------------- M.P.EBRAHIM, S/O. ABOOBACKER, R/AT 'MEETHALE PALLIKULANGARA', MEMUNDA AMSOM DESOM, MEMUNDA P.O., VADAKARA TALUK, REP.BY HIS P/A HOLDER M.P.AMMAD, S/O. ABOOBACKER,R/AT 'MEETHALE PALLIKULANGARA',MEMUNDA AMSOM DESOM, MEMUNDA P.O., VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ACCUSED & STATE ---------------------------------------- 1. K.K.SALAM, S/O. KUNHAMMAD, KALLARAMKETTIL, KURATHIPARA, CHEMBANODE, PERUVANNAMUZHI, KOYILANDY TALUK, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.160 of 2008 ------------------------------------------------ Dated this the 26th day of March, 2008 JUDGMENT The complainant in S.T.53/06 on the file of the Judicial First Class Magistrate's Court-II, Vatakara is the appellant. He assails in this appeal the acquittal of the first respondent of offence under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. The acquittal of the first respondent by the court below was for the reason that no cause of action has arisen for a complaint under Section 138 of the N.I. Act as no notice in compliance with proviso (b) to Section 138 of the N.I. Act is issued to the drawer of the cheque. 2. It is contended before me by the counsel for the appellant that Ext.P5 notice is produced along with certificate of posting whereunder it was sent to the first respondent Crl. Appeal No.160 of 2008 -2- to his address “P.B. No.21081, Manama, Bahrain” where he was working at the relevant time though another notice also had been sent to his local residential address. However, it is not in dispute that the first respondent was at Bahrain and not at his local residential address. Thus, notice issued in his local residential address has admittedly not been served on the second respondent. 3. Ext.D1 account opening form submitted by the first respondent at Canara Bank, Perambra shows that the said form was submitted on 29/09/98 and therein the address of the first respondent is given as follows:- “K.K.Salam. P.B. No.20209, Center Market, Manama, Bahrain.” 4. It is in the said account viz. Account No.12353/B that Ext.P1 cheque is issued. In cross examination the appellant as PW1 has stated that he knows the first respondent for Crl. Appeal No.160 of 2008 -3- the last thirteen years that the first respondent is residing at Manama, but he is not aware as to at which place in Manama is the first respondent residing; that he knows P.B.No.20209 at Center Market and that the first respondent was residing from 2001 to 2007 at Center Market and further that he had however not gone to the residence of the first respondent. All the same, PW1 deposed that while he was at Bahrain his Post Box number was 21081. Ext.P5 was sent addressed to the first respondent in P.B.No.21081 which is admitted to be the Post Box number of the appellant. From Ext.D1 account opening form read with the testimony of PW1 in cross examination, the address of the first respondent from 1998 to 2007 could only be P.B.No.20209 Center Market, Manama. In the certificate of posting attached to Ext.P5 “Center Market” is not mentioned and post box Crl. Appeal No.160 of 2008 -4- number is given differently as 21081. Thus, there is absolutely no evidence to show that notice was issued to the first respondent addressed to his correct and complete address so as to have the requirement of notice being issued to the first respondent under proviso (b) to Section 138 of the N.I. Act being satisfied. Consequently, therefore, as rightly found by the court below, no cause of action has arisen at all for filing a complaint under Section 138 of the N.I. Act. The acquittal of the first respondent by the court below in the circumstances, has only to be upheld and this appeal dismissed. 5. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-