K V DAVIS Vs. M K UNNIKRISHNAN

JUDGEMENT

(1.) This appeal is filed by the complainant against the judgment of acquittal of the first respondent herein passed by the Chief Judicial Magistrate Court, Trichur dt. 18.7.2002 in S.T. No. 1002 of 1999. That was a private complaint filed by the complainant against the first respondent/accused alleging commission of the offence punishable under Section 138 of the N.I. Act.

(2.) The case of the complainant is briefly as follows. The accused issued Ext.P1 cheque for Rs. 30,000/- on 11.3.1999 in favour of the complainant for the discharge of a legally enforceable subsisting liability. When the complainant presented that cheque for encashment on 14.6.1999, it was dishonoured due to insufficiency of funds in the account of the accused and the cheque was received back by the complainant on 28.6.1999. On 1.7.1999, the complainant issued a lawyer notice to the accused intimating dishonour of the cheque and demanding the amount. That notice was not received/accepted by the accused and it was returned to the complainant on 10.7.1999 with an endorsement 'returned to the sender'. Non-acceptance of the notice was wilful and so far the accused has not made any payment and as such the accused committed the offence punishable under Section 138 of the N.I. Act.

(3.) In the Chief Judicial Magistrate Court, on the side of the complainant Pws. 1 and 2 were examined and Exts. P1 to P7 were marked. On the side of the accused he himself was examined as RW1 and Exts. D1 and D2 were marked. The learned Chief judicial Magistrate, on considering the evidence, found that the complainant failed to prove that the accused has committed an offence punishable under Section 138 of the N.I. Act as there was no proper giving of notice to the accused as contemplated under Section 138(b) of the N.I. Act. Against that judgment of acquittal the complainant filed this appeal.