IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 CRL.A.No. 7 of 2008 -------------------------------- ST.155/2005 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... APPELLANTCOMPLAINANT: ISHAQUE, S/O.CHEKUTTY HAJI, KUNNATHODI HOUSE, ANAKKAYAM, VALLIKKAPATTA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/STATE & ACCUSED: 1. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. PULLOORCHALKADAN ABOOBACKER, S/O.AYAMU, KAKUTHU, PERINTHALMANNA, MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 7 of 2008 --------------------------- JUDGMENT The appellant, one Ishaque, was the complainant in S.T.No.155/05 on the file of the Chief Judicial Magistrate's Court, Manjeri. He filed the complaint complaining of commission by the second respondent of an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The defence contended that there is no proper notice issued in time, as mandated by proviso (b) to Section 138 of the Act and further that identity of the complainant, as payee under cheque, is not established. The court below considered the case in the light of the evidence, which consisted of only the oral testimony of PW1 and documentary evidence of Exhibits P1 to P5, found that the contentions raised by the second respondent are tenable and upheld those contentions and acquitted the second respondent of the offence under Section 138 of the Act under Section 255(1) CRA 7/08 2 Cr.P.C. Hence this appeal. 2. The appellant is one Ishaque, S/o Chekutty Haji, Kunnathodi House, Anakkayam, Vallikkapatta, Malappuram District. The payee under Exhibit P1 cheque is K.Muhammad Ishaq. Exhibit P4 lawyer notice described his name as Kunnathodi Ishhaq. The appellant, as PW1, was unable to give any proper explanation as regards this discrepancy. It was contended on behalf of the appellant in the court below that he is Kunnathodi Mohammad Ishhaq and that is why in Exhibit P1 his name is shown as K.Ishhaq. Counsel for the appellant vehemently contends that there are several other documents, which would show that the appellant is actually K.Muhammad Ishaqu, 'K' representing his house name as Kunnathodi. But, it is not known why, in the complaint, his name is shown as Ishaque, S/o Chekutty Haji only. K.Muhammad Ishaqu and K.Ishhaq cannot be the same. However, I do not propose to lay much weight on the finding as regards the CRA 7/08 3 identity of the complainant, as far as this case is concerned, as even otherwise, the appeal has only to be dismissed, upholding the finding regarding insufficiency of notice. 3. Exhibit P1 is the dishonoured cheque. Exhibit P2 is the memorandum of dishonour issued by the drawee bank and that is dated 15.1.2005. The contention of the appellant, in his testimony as PW1, is that he received information regarding dishonour only when he received Exhibit P2 along with Exhibit P3 memo 22.1.2005, issued by his bankers. Exhibit P4 notice intimating dishonour of cheque and demanding amounts due under the cheque is seen dated 21.2.2005, ie. on the last date on which demand could have been advanced, going by the date Exhibit P3 bears. But, Exhibit P3 is only a photostat copy of the memo dated 22.1.2005. According to the second respondent, Exhibit P3 is a manipulated document, created for the sole purpose of filing this complaint, showing that the CRA 7/08 4 conditions in proviso (b) to Section 138 of the Act are satisfied. There is no explanation as to why the original of Exhibit P3 is withheld and only a photostat copy is produced. Even assuming that Exhibit P3 is a true photostat copy of the original, that does not bear the seal of the bank. No bank will issue dishonour memorandum without affixing their seal. If at all any such mistake has occurred on the part of the bank, I fail to understand why a photostat copy is produced and the original is withheld. In any event, had the records from the collecting bank been called for, that would have evidenced as to when they transmitted Exhibit P2 to the appellant/their account holder, along with their memorandum. That has not been done. 4. As already observed, Exhibit P4 Lawyer notice intimating dishonour of the cheque and demanding amounts due under the cheque is dated 21.2.2005. As rightly observed by the court below, CRA 7/08 5 it is not the date shown in the lawyer notice that has to be accepted as the date on which the notice was issued. It could very well be that the notice prepared on 21.2.2005 was issued only on the next day or a day thereafter. It was up to the appellant to clear such suspicions by producing the postal receipt, under which Exhibit P4 lawyer notice was issued. Even accepting Exhibit P3 as genuine, if Exhibit P4 lawyer notice is not issued on 21.2.2005, but, at least a day thereafter, the notice is not within time. Thus, for reason of lack of proof as regards receipt of intimation of dishonour of cheque by the appellant as also in relation to the date on which Exhibit P4 notice was despatched, the learned Magistrate was justified in coming to the conclusion that there is no valid notice shown to have been issued in compliance with proviso (b) to Section 138 of the Act. The dismissal of the complaint also on that ground does not deserve to be interfered with for the reasons CRA 7/08 6 discussed above. This appeal, in the circumstances, is devoid of merit. In the result, I dismiss this appeal. 8th January, 2008 (K.P.Balachandran, Judge) tkv