IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 CRL.A.No. 1134 of 2001(D) ------------------------------------- CRL.A. NO.149/1999 OF SESSIONS COURT, MANJERI .................... APPELLANT/ RESPONDENT/ COMPLAINANT: ----------------------------------------------------------------- P. MUSTHAFA KAMAL, S/O. KUNHAHAMMED, PENGOTTAYIL, PERUMPADAPPU, PONNANI, MALAPPURAM. BY MR. T.KRISHNAN UNNI, SENIOR ADVOCATE. RESPONDENTS/ APPELLANT/ STATE & ACCUSED: ------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MACHAGALATH MOHANAN, S/O. PARANGODAN, CHOVVANNUR, KUNNAMKULAM, THRISSUR DISTRICT. R1 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.APPEAL.NO.1134 OF 2001 () ----------------------------------- Dated this the 25th day of March, 2009 J U D G M E N T The appeal is filed against the judgment of acquittal passed in favour of the accused by the appellate court, reversing the conviction imposed against him for the offence punishable under Section 138 of the Negotiable Instruments Act, in short the 'N.I.Act'. There was no representation for the appellant/complainant when the case was taken up, and it was also noticed, despite sufficient opportunity given, steps have not been taken for serving notice on the respondent/accused. Since the acquittal of the respondent/accused is challenged in the appeal, without serving notice to him, it is not proper to dispose the appeal on merits. However, as there is no provision in the Code of Criminal Procedure for disposal of an appeal, after having admitted and taken it on file, for non-prosecution, despite the absence of the appellant/complainant to prosecute the appeal, and his default in taking steps for service of notice to the respondent/accused, CRL.A.1134/01 2 I proceed to dispose of the appeal on merits. 2. I have perused the records of the case. The learned appellate Judge had reversed the conviction imposed against the respondent/accused for the reason that there was non compliance of proper service of statutory notice as mandated by law. Before filing the complaint for prosecuting him for the offence punishable under Section 138 of the N.I.Act, a notice was issued to the accused on dishonour of the cheque at his former address and it was returned unserved with endorsement that the accused had left the station, and that his present address was not known. On the materials produced in the case, the learned Sessions Judge was of the view that the complainant, at the time of issue of notice, was aware of the shifting of residence of the accused. In forming such a conclusion, the learned Sessions Judge also relied on the allegation raised in the complaint that the complainant and the accused are close friends. Though the finding of the Sessions Judge that the complainant had deliberately issued the notice of dishonour of the cheque at a wrong address, after being aware of the change of the address of the accused, CRL.A.1134/01 3 was assailed in the appeal, I find that on the materials placed, the conclusion formed by the appellate Judge that there was no proper service of statutory notice on the accused in the circumstance indicated, cannot be found fault with. The complainant has not satisfied the condition prescribed in proviso (2) (b) of Section 138 of the N.I.Act, as regards to the issue of notice on dishonour of a cheque, and that being so, the complaint filed without compliance of such statutory notice as mandated by law, was rightly held not maintainable. The acquittal of the accused passed by the appellate court in the above circumstance, cannot be interfered with. Appeal is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.A.NO.1134 OF 2001 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 25th March, 2009