USMAN M. Vs. M. P. MUHAMMED ALI

JUDGEMENT

(1.) This revision petition is preferred by the accused against the judgment in Criminal Appeal No.360 of 2005 of the Additional Sessions Judge, Adhoc-I, Thalassery. Revision petitioner was the accused in S.T.C. No.1618 of 2003 of the Judicial First Class Magistrate Court, Mattannur which was filed under Sec. 138 of the Negotiable Instruments Act ("NI Act" for short). The learned Magistrate convicted the accused under Sec. 138 of the NI Act and sentenced to simple imprisonment for six months and compensation of Rs. 40,000.00 under Sec. 357(3) Crimial P.C. in default, simple imprisonment for three months. Against that, the accused preferred the above criminal appeal, where the learned Additional Sessions Judge modified the sentence to imprisonment till rising of the court and compensation of Rs. 60,000.00, in default simple imprisonment for three months.

(2.) The complainant's case in the trial court was that the accused borrowed a sum of Rs. 40,000.00 from him and in discharge of that liability he issued Ext. P1 cheque. When Ext. P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the due amount by giving a notice in writing, but it was returned as "addressee left India". During trial, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P6. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2 and marked Exts.D1 to D5 in support of his defence.

(3.) Learned counsel appearing for the revision petitioner submitted that there was no service of notice as stated under Sec. 138(b) of the NI Act. The complainant, in his evidence, admitted that the revision petitioner was working abroad when Ext.P4 notice was issued to the accused. The cause of action under Sec. 138 of the NI Act arises only after service of notice. When there was no notice under Sec. 138(b) of the NI Act, the Magistrate erred in taking cognizance of the offence.