IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 CRL.A.No. 1733 of 2003() ------------------------ CC.107/2002 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT/COMPLAINANT: ------------------------------------------ KERALA PRIVATE TRANSPORT OPERATORS ASSOCIATIION (SPARE PARTS WING) T.B. ROAD, KOTTAYAM, REP. BY ITS CHAIRMAN, P.K. BIJU. BY ADV. SRI.K.V.GOPINATHAN NAIR SRI.G.RAJESH RESPONDENTS/ACCUSED & STATE: -------------------------------------------------- 1. C.K. JOSEPH, CHETTICHERIL HOUSE, GANDHINAGAR P.O., KOTTAYAM. 2. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.LIJI.J.VADAKEDOM FOR R1 R2 BY PUBLIC PROSECUTOR SHRI.MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON 15/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1733 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 107 of 2002 on the file of the Judicial First Class Magistrate, Kottayam. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. The case of the complainant briefly is as follows. The first respondent/accused purchased Automobile Spare parts on credit basis from the appellant/complainant, which is a registered association, for an amount of Rs.19,272.92. The first respondent has issued a cheque for the said amount drawn on the Lord Krishna Bank, Kottayam branch, in order to discharge the above liability. The appellant presented the cheque for encashment, but it was dishonoured on 4.4.1996 for insufficiency of funds in Crl.A. No. 1733 of 2003 2 the account of the accused. On 18.4.1996, the complainant issued a lawyer notice to the accused, which was received by the accused. But he did not make any payment. Hence the complainant. 3. In the C.J.M. Court, on the side of the complainant, PW1 was examined and Exts.P1 to P8 were marked. On the defence side, DW1 was examined and Ext.D1 was marked. The learned Magistrate, on considering the evidence, found that Ext.P3 cheque was issued by the accused to discharge a liability as alleged by the complainant. But the accused was acquitted under Section 255(1) Cr.P.C. on the ground that there was no proper notice as required under Section 138 of the N.I.Act. Against that judgment the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act and the complainant sent notice within the Crl.A. No. 1733 of 2003 3 statutory period. The learned counsel for the appellant submitted that the accused has not sent any reply notice nor pleaded in Section 313 statement with regard to any delay in sending the statutory notice. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., he denied the allegations raised against him and contended that the amount claimed is not due from him. According to him, he purchased spare parts worth Rs.3,000/- during 1995 - 96 and as security he had issued a blank cheque as per the decision of the committee meeting. Inspite of discharging that liability, the cheque was not returned and a false case was foisted against him since he discontinued membership in the society. 7. PW1 is the Chairman of the complainant, who is authorised to file complaint as per Ext.P1 authorisatiion. The copy of the bye-law is Ext.P2. According to PW1, the spare parts wing is a sub committee governed as per Ext.P2 and the parent organisation is the Kerala Crl.A. No. 1733 of 2003 4 Private Transport Operators Association. He further deposed that the accused purchased spare parts on credit basis and towards that liability an amount of Rs.19,272.92 was due and in discharge of the said liability the accused issued Ext.P3 cheque dt. 30.3.1996. When the cheque was presented for collection it was dishonoured for insufficiency of funds. The dishonour memo dt. 4.4.1996 is Ext.P4. A lawyer notice was issued on 18.4.1996, copy of which is Ext.P5. The acknowledgment card is Ext.P6. The complainant also produced Ext.P8, ledger extract of the account of the accused from Lord Krishna Bank. 8. The accused does not dispute the fact that Ext.P3 cheque was dishonoured due to insufficiency of funds in his account. The learned C.J.M. considered the evidence and rejected the same. Since the learned C.J.M. has given sufficient reasons for rejecting the defence case, I find that the learned C.J.M. is fully justified in finding that Ext.P3 cheque was issued by the accused in discharge of a liability. Crl.A. No. 1733 of 2003 5 9. One of the necessary ingredients to constitute an offence under Section 138 of the N.I. Act is that the payee or the holder in due course of the cheque should have issued a notice in writing to the drawer within 15 days (now 30 days) of receipt of information by him from the bank regarding the return of the cheque unpaid. 10. There is no dispute that Ext.P3 cheque was dishonoured on 4.4.1996 by the Lord Krishna Bank, Kottayam branch. Ext.P5 is the copy of the notice dt. 18.4.1996 sent by the complainant to the accused. Ext.P6 is the postal acknowledgment signed by the accused showing that he received the notice on 23.4.1996. The learned counsel for the first respondent contended that when a notice is despatched from Kottayam to a destination in the same town, it must be reached the accused on the next day and so that the notice must have sent only on 21st or 22nd, which is beyond 15 days of dishonour of the cheque. The complainant has produced the postal receipt regarding despatch of the lawyer notice showing that the notice was sent within 15 days of intimation of dishonour of the cheque. The complainant has not taken Crl.A. No. 1733 of 2003 6 any steps to produce certificate from the concerned Post Office regarding the date of despatch of the notice. Therefore, there is no evidence to show that the complainant sent the lawyer notice within 15 days from the date of intimation of dishonour of the cheque. Therefore I find that there was no proper notice as contemplated under Section 138 of the N.I. Act and the learned C.J.M. is justified in acquitting the accused under Section 255 Cr.,P.C. 11. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm