K. BASHEER Vs. C. K. USMAN KOYA

JUDGEMENT

(1.) This Appeal is filed against the order of acquittal in Criminal Appeal No.17/2002 on the file of Additional Sessions Court, Kozhikode. The first appellate court reversed the conviction and sentence passed under Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter 'the Act') and acquitted the respondent (hereinafter 'the accused'). A learned Single Judge having come across conflicting opinions in Divakaran v. State of Kerala , 2016 4 KerLT 233 and Surendra Das B. v. State of Kerala , 2019 2 KerLT 895, the case was referred for resolution of conflict to the Division Bench.

(2.) The case of the appellant (hereinafter 'the complainant') is that accused owed an amount of Rs.30,00,000/- to the c omplainant and in discharge of the liability, issued Ext.P1 cheque. On presentation of the cheque for collection, it was returned due to 'insufficiency of funds' in the account of the accused. Statutory notices were issued in the residential as well as office address of the accused. In spite of receipt of notices, accused neither responded nor paid up the money. The complainant was examined as Pw1 and Exts.P1 to P6 marked and the accused examined himself as Dw1 and the Branch Manager as Dw2, marking Ext.D1 to D7 in defence.

(3.) In Divakaran a learned Single Judge held that the nature and date of transaction and the date of issuance of cheque are material facts; which if not disclosed in the statutory notice, the doors of the Court would be closed for such 'fortune seekers'. It was held that an accused, in a complaint filed under Sec.142 of the Act, is entitled to know before trial the material particulars of the accusation levelled; suppression of which would entail acquittal, without anything more.