A JANARDHANAN Vs. C V JAYACHANDRAN

JUDGEMENT

(1.) The complainant is the appellant. He filed C.C. No. 556/95 before the Judicial First Class Magistrate, Payyannur under S.138 of the Negotiable Instruments Act, in short 'the Act' against the 1st respondent/accused. The parties adduced evidence. The copy of the lawyer notice issued on behalf of the complainant was not authenticated by the Advocate, who produced the same before the Court. Therefore, the marking of the notice was objected. A petition under S.311 Cr.P.C. with a copy of the lawyer notice was filed praying to recall PW. 1, the complainant, and mark the copy of notice as Ext. P7. But that was rejected on the ground that it does not comply with the provisions under S.63 of the Evidence Act. Thereafter, the learned Magistrate found the accused not guilty for want of statutory notice under Clause.(b) of the proviso to S.138 of the Act and therefore, dismissed the complaint and acquitted the accused. Hence the complainant came up in appeal before this Court.

(2.) The question that arises for consideration is whether a notice contemplated under the Act was sent to the accused, but inadvertently, without the signature of the Advocate on it, could be considered as a valid notice.

(3.) The learned counsel appearing for the appellant relied on Abdurehim Sait v. Sahul Hameed ( 1981 KLT 289 ) and Viswanathan v. Ramachandran Nair ( 1996 (2) KLT 449 ) to show that even if there is no signature, which was omitted inadvertently to be affixed on the notice, would not invalidate the said notice. On the other hand, the learned counsel for the 1st respondent/accused contended, relying on Patel Maqanbhai Bapujibhai and Others v. Patel Ishwarbhai Motibhai and Others (AIR 1984 Guj. 69) and Kalyan Singh v. Smt. Chhoti and Others ( AIR 1990 SC 396 ) that unless the Court accepts the copy of the notice which comes within the scope of S.63 of the Evidence Act, the same cannot be accepted as secondary evidence. Therefore, prayed to sustain the rejection of the complaint by the Magistrate.