LAWS(KER)-2012-2-57

KURAISHA SADIQ Vs. M ABDUL KALAM

Decided On February 23, 2012
KURAISHA SADIQ Appellant
V/S
M.ABDUL KALAM Respondents

JUDGEMENT

(1.) The short question which arises for consideration in this appeal by special leave under section 378(4) of the Code of Criminal Procedure is whether the notice issued under clause(b) of proviso to Section 138 of the Negotiable Instruments Act is not served on the accused and if the second notice issued after the expiry of 15 days from the date of intimation regarding the dishonour of the cheque can be treated as a valid notice In other words, whether the second notice can be treated as a continuation of first notice . The appellant is the complainant in S.T.No. 364 of 2002 on the file of the Judicial First Class Magistrate-II, Thiruvananthapuram. She has filed a complaint under Section 138 of the Negotiable Instruments Act against the first respondent/accused before the lower court. The learned Magistrate by the impugned judgment dated August 22, 2005 found that the complaint was time barred and dismissed the same and acquitted the accused. The complainant has now come up in appeal with special leave challenging the said judgment of the lower court.

(2.) The case of the appellant/complainant, as testified by her as PW1 before the trial court and as detailed in the complaint, in brief, is this:- The accused borrowed Rs. 1,00,000/- from the complainant and to discharge that liability, he issued Ext.P1 cheque dated October 17, 2001 drawn on the Chalai branch of the Canara Bank, which when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. The notice Ext.P3 dated October 23, 2001 demanding the amount was returned with the endorsement "locked and left". Therefore the complainant again sent another notice Ext.P4 on November 11, 2001. In spite of notice, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act.

(3.) On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused, on appearance before the trial court, pleaded not guilty to a charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P4(a) were marked on her side. When the accused was questioned under Section 313 of Cr.P.C. by the learned Magistrate, the accused denied the entire transaction. The accused got himself examined as DW1 and Exts.Dl and D2 were marked on his side.