IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 CRL.A.No. 591 of 2003() ----------------------- CC.1299/1998 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT/COMPLAINANT: ---------------------------------------- T.K. MADHUSOODANAKJURUP, S/O. N.KESAVA PILLAI THAZHAVANA VADAKKATHIL, PUTHEN KOTTAKKAKOM, CHENNITHALA P.O., MAVELIKKARA. BY ADV. SRI.R.RAMADAS RESPONDENTS/ACCUSED & STATE: ------------------------------------------------- 1. ATTAKUNJU, THONDAPPURATHU HOUSE KAYAMKULAM P.O., NEAR FISH MARKET, KAYAMKULAM. 2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA ADV. SRI.K.HARILAL FOR R1 SRI.R.GOPAN FOR R1 SRI.M.N.SANDEEP FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON 20/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 591 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 1299 of 1998 on the file of the Judicial First Class Magistrate, Mavelikkara. 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. Briefly the case of the complainant is as follows. The accused approached the complainant at the complainant's shop at Mavelikkara on 25.12.1997 and requested him to lend him an amount of Rs.20,000/- As the complainant had only Rs.19,063/- with him, that amount was given to the accused and for discharge of the debt the accused issued cheque dt. 25.5.1998 drawn on Pathiyoor Service Co-operative Bank Ltd. and requested to present the same on or after 25.5.1998. The Crl.A. No. 591 of 2003 2 complainant presented the cheque through Indian Overseas Bank, Mavelikkara on 21.8.1998, but it was dishonoured on 21.8.1998 due to insufficiency of funds in the account of the accused. The complainant received the cheque back on 2.9.1998. On 17.9.1998, he sent a registered notice to the accused, which was accepted by the accused on 21.9.1998. But the accused did not repay the amount. She sent a reply denying the transaction. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the defence side, Dws.1 and 2 were examined and Exts.D1 to D4 were marked. The learned Magistrate, on considering the evidence, found that the accused has rebutted the presumption under Section 139 of the N.I. Act and that the complainant has not sent statutory notice under Section 138(b) of the Act in time and the accused was acquitted under Section 255 Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. Crl.A. No. 591 of 2003 3 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 court below went wrong in accepting the contention of the accused that there was no statutory notice as contemplated under Section 138 of the Act. The learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and as such the learned Magistrate is not justified in acquitting the accused. 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 stated that he has no acquaintance with the complainant and that the accused gave a blank cheque to DW2, Rasheeda, for the purpose of purchasing a T.V. and in that account Rasheeda had to pay Rs.1,500/- to the complainant. To substantiate the case of the accused, he himself was examined as DW1 and Rasheeda was examined as DW2. DW2 Crl.A. No. 591 of 2003 4 deposed that she knew the complainant only after coming to the Court. He had not given Ext.P1 cheque to the complainant. One of his relatives purchased a T.V. from the shop of the complainant and gave him the cheque as a security. He and Rasheeda were having financial transactions and he had given a blank cheque to Rasheeda. The photocopy of a stamp paper is produced and he stated that it is the photocopy of stamp paper given to Rasheeda along with the cheque. It was marked as Ext.D3. Rasheeda had a quarrel with the complainant regarding the balance amount to be paid. The accused had never gone to the shop of the complainant. He had never authorised Rasheeda to give his cheque to the complainant. During cross examination, the original of the reply notice sent by him is makred as Ext.D4. 7. The complainant was examined as PW1. He deposed that on 21.9.1997 the accused borrowed Rs.19,063/- from him and gave a cheque dt.25.5.1998. The cheque drawn on Pathiyoor Co-operative Bank was identified and marked as Ext.P1. The complainant sent the Crl.A. No. 591 of 2003 5 cheque for collection through Indian Overseas Bank, Mavelikkara on 21.8.1998 and it was dishonoured on 2.9.1998. The dishonour memo is Ext.P2. The intimation dt.2.9.1998 is marked as Ext.P3. On 17.9.1998 lawyer notice was sent to the accused, copy of which is marked as Ext.P4. The postal receipt is Ext.P5. Eventhough the accused accepted the notice on 21.9.1998, the accused did not pay any amount to the complainant. The acknowledgment card is Ext.P6. 8. Admittedly the complainant is the Proprietor of Ramco Agencies, engaged in the business of home appliances. In cross examination, PW1 admits that he has no previous acquaintance with the accused. The complainant has not produced any account maintained in his shop to show that he gave the amount mentioned in the cheque as loan to the accused. In the absence of such evidence, it is very difficult to believe that the complainant gave that amount to the accused as loan. Since the complainant is engaged in the business of home appliances, the case of the complainant that Ext.P1 blank cheque Crl.A. No. 591 of 2003 6 was given to DW2 Rasheeda and she gave the cheque as security to the accused when she purchased the T.V. from the shop of the complainant appears to be probable and therefore the finding of the learned Magistrate that the complainant has not succeeded in proving that the accused borrowed the amount from the complainant and issued Ext.P1 cheque is correct. 9. In the complaint it is stated that the complainant received back the dishonoured cheque on 2.9.1998 and that the complainant sent lawyer notice on 17.9.1998 to the accused. Ext.P5 postal receipt does not show the date on which the lawyer notice was sent. But Ext.P6 postal acknowledgment shows that the notice was sent only on 20.9.1998, which was received by the accused on 22.9.1998. Therefore, the learned Magistrate is justified in finding that the complainant has not complied with the mandatory provision of Section 138(b) of the N.I. Act that notice is to be issued within 15 Crl.A. No. 591 of 2003 7 days from the date of receipt of information regarding the dishonour of the cheque. 10. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm