VIJAYA KUMAR,SARADA MANDIRAM,KOTTUKAL Vs. RAMACHANDRAN NAIR

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 22.6.2006 in C.C.No.376 of 2005 of the court of Judicial First Class Magistrate-VI, Neyyattinkara, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) The case of the complainant is that, the accused borrowed a sum of Rs. 65,000/- from the complainant and towards the discharge of the said liability, issued Ext.P1 cheque dated 31.7.1998, which when presented for encashment dishonoured for the reason, "account closed". It is the further case of the complainant that though statutory notice was served on the accused, he did not discharge the liability and therefore the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, Pws.1 to 4 wre examined from the side of the complainant and produced Exts.P1 to P6. From the side of the defence DW1 was examined and produced Exts.D1 to D3. The trial court after considering the entire evidence and materials on record, formulated four points for its consideration, among which, the first point is whether the complainant complied with all legal formalities in filing the complaint. In answer, to the above question, the learned Magistrate has found that the complainant has not issued statutory notice as contemplated under proviso (b) to section 138 of the NI Act within 15 days from receipt of dishonour memo and thus he has found that, the complainant has not complied with all legal formalities in filing the complaint and the point is found against the complainant.

(3.) Heard the counsel for the appellant. I have gone through the judgment of the trial court and the evidence and materials on record.