IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.A.No. 431 of 2002-B ----------------------- CC.332/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... APPELLANT: APPELLANT/COMPLAINANT: ------------------------------------ KAMALOLBHAVAN M.K., S/O. KITTY, KAVUMKOODATHIL HOUSE, ATHANI, NEDUMBASSERY. BY ADV. SRI.K.B.DAYAL RESPONDENTS: RESPONDENTS/ACCUSED: ----------------------------------- 1. WILLIAMS, ATHIPAZHY VEEDU, BEACH ROAD, KOCHI - 682 001. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.K.SHAJAHAN FOR R1 BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/5/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.A. NO.431 OF 2002 ======================= Dated this the 26th May 2009 JUDGMENT The appellant herein is the complainant in C.C.No.332/1999 tried by the Additional Chief Judicial Magistrate (Economic offences), Ernakulam. 2. The complainant has filed this appeal against the judgment in the above case which was filed against the first respondent herein under Section 138 of the Negotiable Instruments Act. According to the complainant, the first respondent/accused had borrowed Rs.30,000/- from the appellant agreeing to repay the amount on demand. When the amount was demanded, the first respondent issued Ext.P1 cheque on 24-11-1995 drawn in his account with State Bank of India, Lissy Hospital Branch, Ernakulam. The cheque when presented for collection through Union Bank of India, Athani Branch, it was returned with the endorsement no sufficient funds CRA.431/2002 -2- to honour the cheque. Thereafter notice was issued by the complainant to the first respondent. The amount has not been paid by the first respondent and the appellant preferred the complaint before the Judicial First Class Magistrate's Court-II, Ernakulam as C.C.No.528/1996 which was transferred to the Additional Chief Judicial Magistrate's Court and renumbered as C.C. No. 332/1999. 3. PWs.1 to 4 were examined on the side of the appellant and Exts.P1 to P10 were marked. The accused was examined as DW2 and another witness was examined as DW1 to prove the defence. Exts.D1 to D5 were were also marked. The trial court has found that Ext.P1 cheque was issued by the first respondent herein towards the discharge of a legally enforceable debt to the complainant/appellant herein. The contention raised by the first respondent/accused was that no valid notice of dishonour of the cheque was issued to him/received by him as claimed by the claimant. According to the first respondent, his correct address is at Kochi-2 whereas the notice admittedly issued by the claimant was in the address at Kochi-1. That notice issued by the complainant in the address at Kochi-1 was returned with the CRA.431/2002 -3- endorsement 'not known' as revealed from Exts.P4 to P6(a). That contention raised by the accused was upheld by the lower court and the accused was acquitted under Section 255(1) of Cr.P.C. That judgment has been challenged by the complainant/appellant before this Court. 4. Heard the learned counsel appearing for the appellant and for the first respondent. 5. It is admitted by both counsel that the finding of the lower court that the accused had issued the cheque, Ext.P1 towards the amount due to the complainant, towards the discharge of a legally enforceable debt has not been challenged by the accused. Therefore, that finding is final. 6. The only question now to be decided in this appeal preferred by the complainant is that whether the statutory notice as contemplated under Section 138(b) of the Negotiable Instruments Act has been issued by the appellant to the first respondent? To establish this the appellant should prove that notice has been issued to the accused in his correct address. The learned counsel for the appellant has argued that statutory notice has been served properly to the accused as contemplated CRA.431/2002 -4- under Section 138(b) of the Negotiable Instruments Act. Therefore, the finding of the lower court that the complainant has not sent notice to the accused in correct address and the address of the accused mentioned in Ext.P6 is not correct requires interference of this Court. 7. To substantiate the case of the appellant, the learned counsel has relied on the evidence of PW1 and Exts.P6, P6(a) and P10. PW1 has specifically stated in the chief examination that Ext.P6 is the cover containing notice,Ext.P6(a) which was returned with the endorsement 'not known'. In the cross examination, PW1 has denied the suggestion put to him that no lawyer notice was issued to the accused. The address of the accused in Ext.P6 cover is written as 'Kochi-1'. Ext.P10 acknowledgment card relied on by the appellant's counsel to prove the case of the complainant/appellant is not seen proved through PW1/complainant. On a perusal of Ext.P10 acknowledgment card, it is revealed that some communication issued by one Sreekumar D.Menon was delivered to the accused herein. The date of delivery was noted therein in blue ink as 2-11-2000, but the same is not clear from the seal of the post CRA.431/2002 -5- office. Further it is revealed that Ext.P10 has been proved through DW2/accused in his cross examination. He has admitted that Ext.P10 acknowledgment card was signed by him which would reveal that he has received Ext.D5 cover. In Ext.D5 cover, the address shown originally as Kochi-1 in blue ink was struck off with red ink and endorsed “try CN-2”. Thus it would reveal that Ext.D5 cover was issued to him in the address shown in Kochi-2. The postal authorities might not have corrected the address in the acknowledgment card. So, it cannot be presumed that Ext.P10 acknowledgment card was signed by the accused in the address shown therein as Kochi-1 which is already struck off in the cover Ext.D5. 8. It is the specific case of the accused that no notice has been served to him as provided under Section 138(b) of the Negotiable Instruments Act. The correct address of the accused is proved through the evidence of DW2 and Exts.D1 to D4. Ext.D1 is the copy of the school leaving certificate wherein the address of the accused for the period from 1967 to 1974 was shown as Kochi-2. Exts.D1 to D4 would reveal that the accused was available from 1967 to 2001 in the address at Kochi-2. CRA.431/2002 -6- 9. It is clear from the judgment rendered by the lower court that after careful consideration of the evidence on record, the learned Additional Chief Judicial Magistrate came to the conclusion that no proper notice as contemplated under Section 138(b) of the Negotiable Instruments Act has been served to the accused/first respondent herein. Accordingly, it was found that the complaint was not maintainable and the accused cannot be found guilty for the offence under Section 138 of the Negotiable Instruments Act. 10. I find that the finding of the lower court does not suffer any illegality or perversity. Therefore, I am not inclined to interfere with the findings entered by the lower court that the accused is not guilty in this case. 11. Accordingly, the judgment passed by the lower court is confirmed and the appeal is dismissed. M.C. HARI RANI JUDGE ks. CRA.431/2002 -7- M.C. HARI RANI, J. CRL.A. NO. 431 OF 2002 JUDGMENT 26-5-2009