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Crl.A. No. 560 of 2007 - Vijayakumar Vs. Ramachandran Nair, 2013 (1) KLT 37 : 2013 (1) KLJ 254

posted Feb 4, 2013, 12:52 AM by Law Kerala   [ updated Feb 4, 2013, 12:53 AM ]

(2012) 282 KLR 781

IN THE HIGH COURT OF KERALA AT ERNAKULAM


PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN 

MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934 

CRL.A.No. 560 of 2007 ( ) 

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AGAINST THE ORDER IN CC.376/2005 of J.M.F.C.-VI, NEYYATTINKARA, DTD.22.6.2006 


APPELLANT(S)/APPELLANT/COMPLAINANT: 

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VIJAYA KUMAR,SARADA MANDIRAM,KOTTUKAL DESOM,KOTTUKAL VILLAGE. 
BY ADV. SRI.R.BINDU (SASTHAMANGALAM) 

RESPONDENT(S)/RESPONDENTS/ACCUSED & STATE: 

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1. RAMACHANDRAN NAIR,S/O.CHELLAPPAN PILLA, 'RENJINI',KOLLKONAM,KOTTUKAL DESOM KOTTUKAL, VILLAGE. 
2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.  
BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR 

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ 


V.K.MOHANAN, J. 

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Crl.A.No.560 of 2007 

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Dated this the 10th day of December, 2012. 

Head Note:-

Negotiable Instrument Act, 1881 - Section 138 - Acknowledgment Due card - Proper and valid statutory notice - The mere production of the receipt from the post office regarding the registration of the postal article is not sufficient to hold that the notice was served on the accused on his correct address. 
Held:- On a reading of proviso (b) to section 138 of the NI Act it is crystal clear that, unless a notice in writing, which makes a demand for the payment of the amount covered by the dishonoured cheque, to the drawer of the cheque is made and the amount remained unpaid within the term stipulated therein, no offence be would attracted. In the present case, absolutely there is no convincing and legal evidence to show that the accused was demanded to repay the dishonoured cheque amount and therefore, there is no statutory compliance. If that be so, according to me, the learned Magistrate is correct in his findings under point no.1, which was in favour of the accused and against the appellant/complainant. As the complainant has miserably failed to comply with the statutory requirement to constitute a valid complaint, according to me, this Court need not go into the other issues involved.

J U D G M E N T 


The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 22.6.2006 in C.C.No.376 of 2005 of the court of Judicial First Class Magistrate-VI, Neyyattinkara, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 


2. The case of the complainant is that, the accused borrowed a sum of `65,000/- from the complainant and towards the discharge of the said liability, issued Ext.P1 cheque dated 31.7.1998, which when presented for encashment dishonoured for the reason, "account closed". It is the further case of the complainant that though statutory notice was served on the accused, he did not discharge the liability and therefore the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, Pws.1 to 4 wre examined from the side of the complainant and produced Exts.P1 to P6. From the side of the defence DW1 was examined and produced Exts.D1 to D3. The trial court after considering the entire evidence and materials on record, formulated four points for its consideration, among which, the first point is whether the complainant complied with all legal formalities in filing the complaint. In answer, to the above question, the learned Magistrate has found that the complainant has not issued statutory notice as contemplated under proviso (b) to section 138 of the NI Act within 15 days from receipt of dishonour memo and thus he has found that, the complainant has not complied with all legal formalities in filing the complaint and the point is found against the complainant.


3. Heard the counsel for the appellant. I have gone through the judgment of the trial court and the evidence and materials on record. 


4. As the first question that has been considered by the trial court and found against the appellant, touches the very basis of the prosecution, I am of the view that, this appeal can be disposed of on that point. It is beyond dispute that though the complainant has got a case that he had sent Ext.P3 lawyer notice dated 23.11.1998 to the accused, the same returned as unserved, but the cover returned, was not produced before the trial court. The Acknowledgment Due card is also seen not produced. The postal authorities, with respect to the post office under which the accused is residing, are also not examined. Virtually, there is no evidence to show that a proper and valid statutory notice was served on the accused in terms of the proviso (b) to section 138 of the NI Act. The mere production of the receipt from the post office regarding the registration of the postal article is not sufficient to hold that the notice was served on the accused on his correct address. On a reading of proviso (b) to section 138 of the NI Act it is crystal clear that, unless a notice in writing, which makes a demand for the payment of the amount covered by the dishonoured cheque, to the drawer of the cheque is made and the amount remained unpaid within the term stipulated therein, no offence be would attracted. In the present case, absolutely there is no convincing and legal evidence to show that the accused was demanded to repay the dishonoured cheque amount and therefore, there is no statutory compliance. If that be so, according to me, the learned Magistrate is correct in his findings under point no.1, which was in favour of the accused and against the appellant/complainant. As the complainant has miserably failed to comply with the statutory requirement to constitute a valid complaint, according to me, this Court need not go into the other issues involved.


5. Thus, going by the judgment of the trial court and the evidence and materials, it can be seen that the trial court came into its specific finding based upon the evidence and materials on record and therefore it cannot be said that the findings of the court below are perverse or illegal. 


6. In the decision in State of Rajasthan v. Darshan Singh @ Darshan Lal (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: 

"In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence." 

Therefore, on examination of the facts and circumstances involved in the present case and in the light of the dictum laid down by the Honourable Apex Court, I am of the view that, the appellant has miserably failed to make out a prima facie case in support of his challenge against the impugned judgment of the trial court. No exceptional cases or compelling reasons are made out to interfere with the order of acquittal recorded by the trial court in favour of the accused. Therefore, I find no merit in this appeal and accordingly, the same is dismissed. 


Sd/- V.K.MOHANAN, Judge 

ami/ //True copy// P.A. to Judge 


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