P. V. MONICHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The order of acquittal of accused passed by the Additional Sessions Judge, Kottayam in Crl.A.No.540/2003 reversing the order of conviction and sentence of the trial court in C.C. No.818/1999, a private complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act'), is challenged by the complainant in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973(for short 'the CrPC').

(2.) The appellant claimed before the trial court that the accused issued Ext.P1 cheque post-dated to 27.03.1999 for an amount of Rs.70,000/-in the name of the appellant drawn on Syndicate Bank, Changanacherry Branch, in discharge of a legally enforceable debt incurred by him. The cheque on presentment was dishonoured by the drawee bank with an endorsement 'account closed'. Thereupon, the appellant sent Ext.P4 demand notice by registered post in the correct address of the accused which returned as 'unclaimed'. Thereafter, the complainant lodged the complaint under Section 138 of the NI Act, claiming it to have been filed in compliance with all statutory formalities.

(3.) The accused, who denied the charge against him in the trial court, opposed the prosecution under two grounds; (a) the demand notice sent by registered post was not in his correct address. He was at the time of alleged service of Ext.P4 demand notice, employed and residing in Saihat Damman, Saudi Arabia which is also the address furnished with the drawee bank and mentioned in Ext.P7, NRI account maintained by him with the drawee bank and (b) he did not have any monetary transaction nor did he incur any such liability with the appellant, except that the appellant introduced to him one Monichan in Alappuzha, from whom he received an amount of Rs.15,000/- as loan, for which, a blank cheque was issued. Strangely enough, it was later converted into Ext.P1 cheque by Monichan colluding with appellant. Since Ext.P1 was subjected to material alteration, it is void and prosecution case is, therefore, illegal.