IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRL.A.No. 390 of 2007() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.51/2007 Dated 30/01/2007 CC.539/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... APPELLANT(S): COMPLAINANT ------------------------- M.R.JAYAKUMAR, PUTHENPARAMBIL,CHUMALRA, KUTTAPUZHA.V BY ADV. SRI.SAJITH KUMAR V. SMT.G.R.LEKSHMI RESPONDENT(S): ACCUSED ---------------------- 1. K.GANESHAN, S/O KOLANTHAVEL, MANIKUNNEL, MATHIBHAGAM, THIRUVALLA(GANESH FAST FOOD, MARKET ROAD, THIRUVALLA). 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUZHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 390 OF 2007 = = = = = = = = = = = = = = = Dated this the 25th day of May, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.539/03 of the Judicial First Class Magistrate-Ranny. The brief facts are as follows. It is the case of the complainant that the accused had borrowed a sum of Rs.1,50,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds. A statutory notice was issued which has been returned as unclaimed and thereafter proceedings has been initiated. 2. On the other hand, the accused had not admitted the transaction and further he would submit that he had not received any notice. The trial court on a consideration of the materials acquitted the accused and it is against that decision the complainant has come up in appeal. Crl.A. 390 OF 2007 -2- 3. The learned counsel for the appellant argues before me that the Court below was wrong in arriving at the decision that the notice was not proper. According to him the accused had two addresses, one, a residential address and the other the place of business. Notice was issued to the place of business which was intimated to him and he did not claim the notice and therefore it returned as unclaimed. According to the learned counsel the said mode of service is sufficient and what is required u/s 138 of N.I. Act is a notice to be given in writing. 4. The trial court found that there was nothing to show that the notice was properly addressed and therefore did not pursue the liberal interpretation contemplated u/s 27 of the General Clauses Act. Whether the notice is attempted to be served on a proper address or not is a question of fact. There cannot be any dispute that a person can have a residential address as well as an address on the place of his business. It is the definite case of the complainant that the accused was running a fast food service called Ganesh Fast Food and if Crl.A. 390 OF 2007 -3- really it was running and a notice had been tendered to him or anybody available there, by way of intimation then one can draw the inference regarding the correctness of the mode of service. But unfortunately the complainant did not adduce sufficient evidence in this case to prove that the accused was running a Fast Food Service. He was having a local address and the postman had tendered the notice there and in spite of intimating the accused had not received the notice. The learned counsel would contend that if an opportunity is given he would certainly substantiate that fact to the conscience of the Court. 5. Secondly, at the time of 313 questioning a statement has been given by the accused to the effect that the cheque is not issued from his account. But such a question was not put to PW1 at the time of his cross-examination and so the complainant had been taken by surprise. In the light of a statement it is incumbent upon the complainant to establish that factor also. In this Court, in spite of notice the accused had not chosen to appear. Therefore considering the above Crl.A. 390 OF 2007 -4- facts and circumstances I feel an opportunity can be given to the complainant to establish the case. Therefore the judgment under challenge is set aside and the matter is remitted back to the Court below for fresh consideration after affording an opportunity to the complainant to prove that a notice had been properly addressed and further that the cheque had been issued from the account maintained by the accused. Therefore the complainant is directed to appear before the Court below on 2.7.2009 and on appearance is directed to take out summons to the accused so that the matter can be disposed of. The Crl. Appeal is dispose of accordingly. M.N. KRISHNAN, JUDGE. ul/-