K O CHAKO Vs. KURIAN P V

JUDGEMENT

(1.) The complainant before the trial court is the appellant herein He filed a complaint against respondents 1 and 2 herein, alleging an offence under Section 38 of the Negotiable Instruments Act, 1881 (for short 'the Act'). The trial court acquitted the accused. Hence this appeal.

(2.) Whether there was notice, in terms of Clause (b) of the proviso to Section 138 of the Act, is the moot question involved in this case.

(3.) Ext.P1 cheque issued by the accused bounced, when presented to the bank. This resulted in a notice, copy of which is produced as Ext.P3. But, the notice addressed to the accused returned back to the sender unclaimed. Ext.P5 series are the notices so returned. In the light of these facts, it is contended by the appellant that he had discharged the part of his duty in terms of Clause (b) of the proviso to Section 138 of the Act, by making a demand in the notice addressed to on the accused persons, for repayment of the amount covered by the cheque-Ext.P1, which bounced for want of sufficient funds in the account maintained by the accused. The postman took the notice to the residence of the accused. They were absent. It was repeated on three days. Thereafter, nobody claimed it. Therefore, it was returned 'unclaimed returned to sender'. When those notices were addressed to the accused/respondents and those were returned as unclaimed, it should be taken that the notice mentioned in Clause (b) of the proviso to Section 138 had been completed and there was a demand in writing of the amount covered by the cheque. In this respect, the decision reported in Bhaskaran v. Sankaran Vaidhyan Balan 1999 (3) KLT 440 : (1999) 7SCC 510 is relied on. It is submitted that when a notice is returned unclaimed, it shall be deemed to have been served on the addressee. The decision reported in Joseph Jose v. J. Baby and Ors. (2002 (3) KLT SN 64 : 2002 (2) KLJ 332 is also relied on to submit that the endorsement "unclaimed" in Ext. PS series can be taken as 'refusal' and therefore, there is due compliance of the requirement of a notice under Section 138 of the Act. Therefore, the order of acquittal was not justified, the counsel contends.