ORIENTAL METALS Vs. FAIZAL K.

JUDGEMENT

(1.) Complainant in ST No. 232/2004 of the judicial First Class Magistrate-IV, Kochi, aggrieved by the acquittal of the accused in a proceeding under Section 138 of the Negotiable Instruments Act, has preferred this appeal.

(2.) Complainant is a partnership firm represented by the Managing Partner. Case of the complainant was that the accused, who was running a business under the name and style "M/s. Hi-Heights" having its office at Penta Queen Apartments, Palarivattom, had purchased certain articles from the complainant and, towards the value of it, a sum of Rs. 9,95,042.52/- was due from the accused. Towards partial discharge of the liability, the accused allegedly executed and delivered a cheque for a sum of Rs. 9,71,990/- dated 25/8/2004. The cheque was presented for collection. It was returned dishonoured with endorsement "funds insufficient". A statutory notice was issued. Since the amount was not paid, the complaint was laid alleging offence punishable under section 138 of the NI Act.

(3.) Before the court below, the accused appeared and contested the proceedings. On the side of the complainant, the power of attorney holder was examined as PW1. Exts. P1 to P10 were marked. Accused got himself examined as DW1 and Ext. D1 was marked on his side. The court below, on evaluation of the entire evidence found that PW1 was competent to represent the complainant and that the cheque was issued towards the discharge of a legally recoverable debt. However, the court found that Ext. P8 statutory notice was sent in a wrong address and since there was nothing to show that it was served properly on the complainant, it was held that there was no service of statutory notice. Consequently, the complaint was dismissed and the accused was acquitted holding that the complainant failed to prove that the accused had committed offence punishable under section 138 of the NI Act. This is under challenge in the present proceedings.