MUNIRAJ Vs. T VISWANATH

JUDGEMENT

(1.) THE appeal arises out of the Judgment of acquittal dated 27.04.2005 made in C.C.No.30 of 2004 on the file of the District Munsif cum Judicial Magistrate, Denkanikottai.

(2.) THE appellant, as a complainant, preferred a private complaint stating that the respondent/accused borrowed a sum of Rs.75,000/- on 05.12.2003 and agreed to repay the same within two months. But, he had not repaid the amount and for that, on 05.02.2004, he issued Exs.P1 to P3-Cheques, dated 05.02.2004, each for Rs.25,000/-, totalling Rs.75,000/-, bearing Nos.809251, 809253 and 809254, drawn in favour of State Bank of Mysore, Bangalore. The cheques had been presented on 05.03.2004 for encashment before the Indian Bank, Thally and the same had been returned on 13.03.2004, with return memos, i.e. Exs.P5 to P7, indicating as "insufficient funds ". Immediately, he issued Ex.P8-legal notice to the accused on 23.03.2004 and the said notice was not served and the postal cover was returned on 16.04.2004. Therefore, the accused, with malafide intention, after knowing fully well that there was no sufficient funds to honour the cheque, issued the cheques, thereby, committed offence punishable under Section 138 of the Negotiable Instruments Act.

(3.) THE learned counsel appearing for the appellant submitted that Exs.P1 to P3-cheques were returned on 13.03.2004 and Ex.P9-legal notice was sent on 23.03.2004 to the accused and the postal cover was returned under Ex.P9 indicating as "Door locked, Not Claimed, Returned to Sender". Therefore, the notice is valid under Section 138 Proviso (b) of the Negotiable Instruments Act. To substantiate the same, he relied upon the following decisions of the Apex Court: