VARGHESE K MATHEW Vs. V K JOY

JUDGEMENT

(1.) The complainant in C.C No. 264 of 2001 on the file of the Judicial First Class Magistrate Court, Pathanamthitta is the appellant herein.

(2.) The case was taken on file on the basis of a private complaint filed by the complainant u/s 138 of the Negotiable Instruments Act (herein after called the Act). The case of the complainant in the complaint was that the accused had some vehicle transaction with the complainant and an amount of Rs.5 Lakh was due to him and in discharge of that liability, he had issued Ext.P1 cheque dated 20.12.2000 drawn on Bank of Baroda, Thodupuzha Branch in favour of the complainant. The complainant presented the cheque for collection through the Federal Bank, Pathanamthitta, which was dishonoured by the drawee bank with endorsement 'refer to drawer' and 'account closed' vide Ext.P2 dishonour memo and this was intimated to the complainant by his banker by Ext.P3 intimation letter. The complainant issued Ext.P4 notice on 5.6.2001 evidenced by Ext.P4 postal receipt and the same was returned with endorsement 'unclaimed'. The accused had not paid the amount. So he had committed the offence punishable u/s 138 of the Act. Hence the complaint.

(3.) When the accused appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P7 were marked on his side. After closure of the complainant's evidence the accused was questioned u/s 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had no transaction with the complainant and he had not issued any cheque to the complainant. In order to prove his case he himself was examined as DW1 and Exts. D1 and D2 were marked on his side. After considering the evidence on record, the court below found that there was no proper service of notice on the accused as contemplated u/s 138 of the Negotiable Instruments Act and acquitted the accused on that ground. Aggrieved by the same, the present appeal has been filed by the appellant/complainant before the court below with leave petition as Crl..L.P 374/2003 which was granted and appeal was admitted to file.