G JAYAN Vs. P SAJIKUMAR

JUDGEMENT

(1.) 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 17.11.2009 in S.T.No.63 of 2005 of the court of Judicial First Class Magistrate-IV, Kollam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) THE case of the appellant is that the accused borrowed a sum of `2,50,000/- from the appellant and towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured for the reason "funds insufficient" in the account maintained by the accused and the accused has not paid the amount covered by the dishonoured cheque, inspite of a statutory notice served on the accused and therefore the accused has committed the offence punishable under section 138 of NI Act.

(3.) AMONG other several grounds, the main ground under which the learned Magistrate acquitted the accused is, the failure on the part of the complainant in proving that, the valid demand notice was served on the accused in terms of the proviso to Section 138 of NI Act. The available evidence and materials show that, Ext.P1 cheque dated 4.10.2005 was dishonoured on 4.10.2005 as evident by Ext.P2 memo. It is the case of the complainant that, on receiving Ext.P2 memo, he had caused to sent a lawyer notice to the accused, intimating him about the dishonour of the cheque and demanding to pay the amount covered by the dishonoured cheque. Ext.P3 notice dated 15.10.2005 is the said lawyer notice. Ext.P4 is the postal receipt to show the sending of Ext.P3 notice to the accused. It is suffice to say that, the complainant has miserably failed to produce the 'acknowledgment due card' to prove the receipt of Ext.P3 lawyer notice. From the judgment of the trial court it is clear that, the accused had denied the receipt of notice which alleged to have issued by the complainant. On a perusal of Ext.P4 postal receipt, it can be seen that the correct address of the accused is not shown in Ext.P4 receipt. On a close perusal of Ext.P4 it can be seen that, the address quoted in Ext.P4 is 'P.Sajikumar, Kottiyam', but the details of the address of the said person is not mentioned in Ext.P4. Therefore, it cannot be held for a moment that the complainant has sent Ext.P3 notice in the correct address of the accused. As I indicated earlier, the complainant has also not produced the 'acknowledgment due card' to prove that, formal demand notice has been served on the accused. Service of statutory notice in terms of proviso to section 138 of NI Act is the essential and integral part of the procedure contemplated under Section 138 of NI Act and the non compliance of the above procedure will render the prosecution case as unsustainable and illegal. If that be so, according to me, the appellant has miserably failed to establish the prima facie case for further consideration of the appeal, so as to interfere with the order of acquittal recorded by the trial court. The reason assigned by the learned Magistrate in support of his finding and order of acquittal appears to be correct and it cannot be said that the said finding and reasoning are perverse or illegal. In the result, the appeal is devoid of any merit and accordingly the same is dismissed.