JOSHY K N Vs. K M ABDUL SHAEBI

JUDGEMENT

(1.) The complainant is in appeal. The complaint was filed under Section 138 of the Negotiable Instruments Act. The accused therein was acquitted by the learned Magistrate under Section 255 (1) Cr.P.C. mainly on the ground that the statutory notice sent by the complainant was not served on him. The notice was returned with an endorsement "door locked". The Learned Counsel for the complainant submits that though the findings on other points, were entered by the learned Magistrate in favour of the complainant, based on a wrong finding regarding the notice sent the accused was acquitted. This appeal is filed challenging the verdict of acquittal.

(2.) It is argued by the Learned Counsel that even the evidence given by DW.2, the post man would show that Ext.P4 notice was taken to the house of the accused in the address shown therein. There was no case for the accused that he was not residing in the address shown in Ext.P4 notice. Even if it is accepted that the accused had left the house to some other place for a few months that is no reason to say that the statutory notice was not sent as required under the Proviso to Section 138 of N.I. Act.

(3.) The suggestion put to PW. 1 by the accused was to the effect that from January, 98 to December, 1998 the accused and his family members were not in station. Ext.P1 cheque is dated 06.02.1998. The cheque was valid for 6 months. Therefore the accused who issued the cheque was expected to know that the cheque was likely to be presented before the bank for encashment and if any notice is to be sent, that notice had to be sent in his address which was known to the complainant at the time when the transaction was entered into. There is no case for the accused that he had informed the complainant of his shifting of the residence during the period as suggested by him to PW1. What is the presumption available as to the due service of notice, when the notice was sent by registered post, is to be considered relying on the decisions in Bhaskaran v. Sankaran Vaidhyan Baton, 1999 3 KerLT 440 and D. Vinod Sivappa v. Nanda Belliappa, 2006 3 KerLT 94 These decisions were affirmed by the Apex Court in Alavi Haj v. Mohammed, 2007 3 KerLT 77. There it was held: