IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.A.No. 945 of 2002() --------------------------------- CC.250/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V (SPECIAL COURT FOR MARK LIST CASES), TRIVANDRUM .................... APPELLANT/COMPLAINANT ---------------------------------------- M/S. ANAND FREIGHT OVERSEAS PRIVATE LIMITED, REPRESENTED BY ITS DIRECTOR B.N. PILLAI, RESIDING AT T.C.39/1497, ARYASALA, THIRUVANANTHAPURAM BY ADV. MR.V.V.SURENDRAN RESPONDENTS/ACCUSED ------------------------------------- 1. M/S. M.R.EXPORTS, VII/373, MURALI NILAYAM, ERUMAKKAD P.O., EDAYARANMULA, CHENGANNOOR, PATHANAMTHITTA, REPRESENTED BY THE POWER OF ATTORNEY, THE 2ND RESPONDENT 2. K.G. NARAYANA PILLAI, POWER OF ATTORNEY, M/S.M.R. EXPORTS, RAJEE BHAVAN, ERUMAKKADU P.O., EDAYARANMULA, CHENGANNOOR, PATHANAMTHITTA. R2 BY ADV. MR.MVS.NAMBOOTHIRY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 945 OF 2002 = = = = = = = = = = = = = = = Dated this the 5th day of June, 2009. J U D G M E N T This appeal is preferred against the order of the Judicial First Class Magistrate-V, Thiruvananthapuram whereby he held that the complaints C.C.249 and 250/00 are not maintainable for want of proper statutory intimation and thereby acquitted the accused in the case. The present appeal is preferred against the order of acquittal in C.C.250/00. C.C.250/00 relates to three cheques which are marked as Exts.P6 to P8. The other case was C.C.249/00 where the cheques were marked as Exts.P3 and P5 and the corresponding notices are Exts.P11 and P12. The Court below found that Exts.P11 and P12 notices are defective for the reason that it does not contain any particulars which are absolutely necessary for a person to know about the purport of the notice. Under Section 138 of the N.I.Act when in discharge of a liability a cheque is issued which when presented returns for insufficiency of Crl.A. 945 OF 2002 -2- money and as per the statute when an intimation is received from the Bank with respect to the dishonour of the cheque a notice has to be issued within 15 days from the date of such intimation and further a notice in writing shall be given to the accused in order to enable him to wipe off the liability, failure of which a prosecution can be launched u/s 138 of the N.I.Act. So the purport of issuance of a notice is to intimate the person concerned about the cheque amount as well as when it was issued. I had perused Exts.P11 and P12 notices. It only states about the transaction and the wording itself is that “For each exports made by you during the above period you have issued cheques to us with various dates in May and June, 1999 towards the air-freight and other charges”. Except this recital absolutely there is nothing in the notice to show when the cheque was issued, what was the amount involved etc. Therefore for initiating a prosecution u/s 138 of the N.I.Act it is absolutely necessary that a proper statutory notice is issued. Here the notice lacks description of the important ingredients which should have been there in the same. I do Crl.A. 945 OF 2002 -3- not find any reason to disagree with the learned Magistrate in arriving at a decision that it is lacking. I am also informed that another learned Judge of this Court has also taken the very same view in Crl.A.946/02 which is an appeal preferred against C.C.249/00. Therefore the appeal lacks merits and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 945 OF 2002 -4- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 945 OF 2002 = = = = = = = = = = = J U D G M E N T 5th June, 2009