J DANIEL Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a petition to grant leave to file an appeal against the judgment in C. C. No. 259/2004 on the file of the Court of the Judicial First Class Magistrate-I, Nedumangad. The above case was on a complaint filed by the petitioner alleging that the 2nd respondent committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as 'the Act'. It is stated in the complaint that the 2nd respondent issued Ext. P1 cheque in favour of the petitioner in discharge of an amount of Rs. 60,000/- alleged to have been owed by him and on presentation of the same, it was dishonoured stating "funds insufficient". The petitioner caused a statutory notice to the 2nd respondent demanding the amount covered by the cheque. Though the 2nd respondent received the notice, the amount was not paid. Hence the complaint was filed. The trial court took cognizance of the offence and tried the case. Before the trial court P. Ws. 1 to 4 were examined on the side of the prosecution and marked Exts. P1 to P9. On the side of the defence 2nd respondent himself was examined as DW1 and Exts. D1 to D5 were marked. After considering the evidence, the trial court acquitted the 2nd respondent holding that the petitioner failed to prove the service of statutory notice to the 2nd respondent and that the cheque was in discharge of legally enforceable debt. Aggrieved by the above, the petitioner has approached this Court.

(2.) LEARNED counsel for the petitioner submits that the finding of the trial court that the notice was issued not within the statutory time limit is not correct. The learned counsel also submits that the finding of the trial court that Ext. P1 cheque issued the 2nd respondent was not a legally enforceable debt or other liability is not correct.

(3.) SECTION 138 of the Act deals with dishonour of cheque for insufficiency, etc. of funds in the account, which reads as follows:-