KUNJAN PANICKER Vs. CHRISTUDAS

JUDGEMENT

(1.) This appeal is by the complainant is ST No. 67 of 1990 of the Judicial First Class Magistrate, Neyyattinkara, who was the respondent in Crl.A.No. 6 of 1992 of the 1st Additional Sessions Court, Trivandrum, filed by the respondent herein against his conviction and sentence for offence under S.138 of the Negotiable Instruments Act, which were set aside and he was acquitted. The appellant obtained Ext. P1 cheque dt. 22.10.1989 for Rs. 26,600/- from him towards payment of the amount he advanced, that was dishonoured by the Catholic Syrian Bank, Neyyattinkara Branch on 31.10.1989, with the endorsement "refer to drawer". Thereupon information was given to him, at whose request the cheque was re-presented on 15.11.1989 and it was again dishonoured as per Ext. P2 memorandum dt. 24.11.1989 that was received along with the cheque on 4.12.1989. On the very next day, a notice was issued to him demanding payment of the amounts, that he did not accept and it was returned on 7.12.1989 as "not claimed". He waited for some time for him to make the payment, that he did not and therefore the complaint was filed.

(2.) At the trial the respondent denied the execution of the cheque that he said was fabricated by making use of a blank cheque leaf that the appellant's son inlaw had stolen and maintained that no amount was actually due. But his contention was not accepted and the learned Magistrate found the case as alleged convicted and sentenced him as stated above. The Appellate Court however disagreed with the findings of the Magistrate, it said were made only on the interested evidence of the appellant. It was further observed that the Magistrate was not justified to find the genuineness of the signature of the respondent in the cheque by comparing the same with that in his Vakalath and also took exception to the failure to examine the official, who could have testified to its genuineness with reference to his specimen signature the bank had. The non examination of the postman to show that Ext. P3 notice was actually tendered or intimation thereof was given to him and he still refused to receive it was also commented upon. On these premises the judgment of the Magistrate was set aside and the respondent was acquitted.

(3.) In the course of hearing this appeal, the respondent's counsel relied upon the decision in Raj v. Rajan ( 1997 (1) KLT 302 ) and submitted that the notice issued was defective and "so without reference to the other contentions in the case, the order of acquittal must be upheld." But the appellant's Counsel urged that the above decision required reconsideration. The learned Judge also felt that the view expressed there "that any claim for a higher or lesser amount than the one covered by the cheque in the notice will make it insufficient, vague and illegal, requires reconsideration by a Division Bench" and accordingly the appeal has come before us.