BHAVANI AUTO DISTRIBUTORS Vs. K MURALEEDHARAN

JUDGEMENT

(1.) Complainant in C. C. No. 529/98 on the file of the Judicial Magistrate: of the First Class-I, Ernakulam is the appellant. First respondent, accused in the: complaint, was acquitted on the ground that no notice was served on the 1st respondent and the appellant could not prove that the 1st respondent have knowledge of the notice or he had refused to receive the same. The case of the appellant is that the 1st respondent purchased spare parts worth for rs. 23,989/- and issued Ext. P1 cheque for that amount and when it was presented for encashment, the same was dishonoured for insufficiency of funds in the account of the 1st respondent. On receipt of intimation off dishonour of the cheque, a lawyer's notice was caused to the 1st respondent demanding of the amount covered by the cheque. The said notice was returned to the appellant with the endorsement "not claimed". Thereafter, the complaint was filed. To prove the case against the 1st respondent, the appellant himself was examined as P. W. 1 and exts. P1 to P6 were marked. After closing the evidence of the appellant, the 1 st respondent was questioned under Section 313, Cr. P. C. He denied the allegation and stated that he was having no transaction with the appellant and Ext. P1 cheque was given as a security to Meenakshi Enterprises. After considering the entire evidence, the trial court acquitted the 1st respondent on the ground that the complaint was filed without giving a statutory notice to the 1st respondent as provided under proviso (b) to section 138 of the Negotiable Instruments act, hereinafter referred to as "the Act".

(2.) The learned counsel for the appellant submits that the finding entered by the trial court with regard to the service of notice is perverse. The learned counsel further submits that the trial Court ought to have found that the appellant had proved the issuance of notice and there was a deliberate evasion on the part of the 1st respondent in receiving the notice.

(3.) It is not disputed that the cheque was dishonoured for insufficiency of funds in the account of the 1st respondent. Ext. P3 memo shows that the cheque was returned to the appellant on 10-9-1996. Ext. P5 postal receipt shows that the appellant had sent demand notice to the 1 st respondent on 19-9-1996. The notice was returned with the endorsement "not claimed". When the 1st respondent was questioned under section 313, Cr. P. C. his case was that he has issued Ext. P1 cheque to Meenakshi Enterprises as security. This was only bald defence as no attempt was made to prove his case. The trial Court did not consider it as a ground for acquittal. However, the trial Court after considering the facts and circumstances of the case found that the complaint was filed without giving a statutory notice to the 1st respondent as provided under section 138 of the Act and hence the complaint was not maintainable. To come to the above conclusion, the trial Court had relied on two decisions of this Court reported in sosamma v. Rajendran 1993 (1) KLT 629 : (1993 Cri LJ 2196) and Hameed Bafaky v. Moideen (1995 (2) KLJ 619 : (1996 Cri LJ 1013).