IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1733 of 2003()
1. KERALA PVT TRANSPORT OPERATORS ASSN.
... Petitioner
Vs
1. C.K.JOSEPH
... Respondent
For Petitioner :SRI.K.V.GOPINATHAN NAIR
For Respondent :SRI.LIJI.J.VADAKEDOM
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :15/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 1733 of 2003
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Dated this the 15th day of December, 2010
JUDGMENT
This appeal is filed by the complainant in C.C. No. 107 of
2002 on the file of the Judicial First Class Magistrate, Kottayam.
The first respondent herein was the accused in that case, which
was filed by the complainant alleging commission of the offence
under Section 138 of the N.I. Act.
2. The case of the complainant briefly is as follows. The
first respondent/accused purchased Automobile Spare parts on
credit basis from the appellant/complainant, which is a registered
association, for an amount of Rs.19,272.92. The first respondent
has issued a cheque for the said amount drawn on the Lord
Krishna Bank, Kottayam branch, in order to discharge the above
liability. The appellant presented the cheque for encashment,
but it was dishonoured on 4.4.1996 for insufficiency of funds in
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the account of the accused. On 18.4.1996, the complainant issued a
lawyer notice to the accused, which was received by the accused. But
he did not make any payment. Hence the complainant.
3. In the C.J.M. Court, on the side of the complainant, PW1
was examined and Exts.P1 to P8 were marked. On the defence side,
DW1 was examined and Ext.D1 was marked. The learned Magistrate,
on considering the evidence, found that Ext.P3 cheque was issued by
the accused to discharge a liability as alleged by the complainant. But
the accused was acquitted under Section 255(1) Cr.P.C. on the
ground that there was no proper notice as required under Section 138
of the N.I.Act. Against that judgment the complainant filed this
appeal.
4. Heard learned counsel for the appellant and the learned
counsel for the first respondent.
5. The learned counsel for the appellant submitted that the
complainant has proved all the ingredients of the offence under
Section 138 of the N.I. Act and the complainant sent notice within the
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statutory period. The learned counsel for the appellant submitted that
the accused has not sent any reply notice nor pleaded in Section 313
statement with regard to any delay in sending the statutory notice.
The learned counsel for the first respondent supported the judgment
of the court below.
6. When the accused was questioned under Section 313 Cr.P.C.,
he denied the allegations raised against him and contended that the
amount claimed is not due from him. According to him, he purchased
spare parts worth Rs.3,000/- during 1995 – 96 and as security he had
issued a blank cheque as per the decision of the committee meeting.
Inspite of discharging that liability, the cheque was not returned and a
false case was foisted against him since he discontinued membership
in the society.
7. PW1 is the Chairman of the complainant, who is authorised to
file complaint as per Ext.P1 authorisatiion. The copy of the bye-law is
Ext.P2. According to PW1, the spare parts wing is a sub committee
governed as per Ext.P2 and the parent organisation is the Kerala
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Private Transport Operators Association. He further deposed that the
accused purchased spare parts on credit basis and towards that liability
an amount of Rs.19,272.92 was due and in discharge of the said
liability the accused issued Ext.P3 cheque dt. 30.3.1996. When the
cheque was presented for collection it was dishonoured for
insufficiency of funds. The dishonour memo dt. 4.4.1996 is Ext.P4. A
lawyer notice was issued on 18.4.1996, copy of which is Ext.P5. The
acknowledgment card is Ext.P6. The complainant also produced
Ext.P8, ledger extract of the account of the accused from Lord Krishna
Bank.
8. The accused does not dispute the fact that Ext.P3 cheque was
dishonoured due to insufficiency of funds in his account. The learned
C.J.M. considered the evidence and rejected the same. Since the
learned C.J.M. has given sufficient reasons for rejecting the defence
case, I find that the learned C.J.M. is fully justified in finding that
Ext.P3 cheque was issued by the accused in discharge of a liability.
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9. One of the necessary ingredients to constitute an offence
under Section 138 of the N.I. Act is that the payee or the holder in due
course of the cheque should have issued a notice in writing to the
drawer within 15 days (now 30 days) of receipt of information by him
from the bank regarding the return of the cheque unpaid.
10. There is no dispute that Ext.P3 cheque was dishonoured on
4.4.1996 by the Lord Krishna Bank, Kottayam branch. Ext.P5 is the
copy of the notice dt. 18.4.1996 sent by the complainant to the accused.
Ext.P6 is the postal acknowledgment signed by the accused showing
that he received the notice on 23.4.1996. The learned counsel for the
first respondent contended that when a notice is despatched from
Kottayam to a destination in the same town, it must be reached the
accused on the next day and so that the notice must have sent only on
21st or 22nd, which is beyond 15 days of dishonour of the cheque.
The complainant has produced the postal receipt regarding despatch of
the lawyer notice showing that the notice was sent within 15 days of
intimation of dishonour of the cheque. The complainant has not taken
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any steps to produce certificate from the concerned Post Office
regarding the date of despatch of the notice. Therefore, there is no
evidence to show that the complainant sent the lawyer notice within 15
days from the date of intimation of dishonour of the cheque. Therefore
I find that there was no proper notice as contemplated under Section
138 of the N.I. Act and the learned C.J.M. is justified in acquitting the
accused under Section 255 Cr.,P.C.
11. Accordingly this appeal is dismissed, as it is without any
merit.
(M.L. JOSEPH FRANCIS)
Judge
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