The appellant (complainant) is aggrieved by the acquittal of the contesting respondent/accused in a case filed by him before the learned Magistrate alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ( in short 'the N.I Act').
2. Case in the complaint is that the accused borrowed an amount of Rs.2,00,000/- from the complainant/petitioner promising to repay the same as and when demanded. In discharge of that liability, a cheque was issued for the said sum on 25-11-1998. When it was presented for collection, the cheque was dishonoured due to insufficiency of funds. Thereafter, the complainant caused to issue a lawyer notice which could not be served on the accused. Hence it was returned 'unserved'. Ext.P4 is the cover returned unserved with an endorsement by a postman that intimation was served on the addressee on 14-12-1998. The complaint was filed by the petitioner alleging that the accused intentionally evaded notice.
3. Court below after considering the evidence of the two witnesses examined on the side of the complainant and Exts.P1 to P7 marked on his side and also on the testimony of DW's 1 and 2 and Ext.D1 found that the condition precedent for maintaining a complaint under Section 138 of the N.I Act was not fulfilled by the complainant, as the accused was not served with a notice mandated thereunder.
4. Heard the learned counsel for the appellant. There was no representation for the accused/contesting respondent.
5. Learned counsel for the appellant submitted that the court below went wrong in acquitting the contesting respondent finding that there was no statutory notice served on the accused. I have carefully gone through the oral evidence adduced on the side of the complainant and the accused. PW1 is the complainant. According to him, the accused owed an amount of Rs.2,00,000/- to him and in discharge of that liability, Ext.P1 cheque was issued. Admittedly, the cheque was dishonoured due to insufficiency of funds in the account. Ext.P3 series are the copy of the lawyer notice and the postal receipt. Ext.P4 is the cover returned unserved. The court below placed reliance on Ext.D1 nativity certificate issued by DW2. It is borne out from records that the accused is a permanent resident of Veloor in Thrissur District. The address of the accused shown in the complaint and the statutory notice is that of his wife's house at Valakulam, Venniyoorparamba in Malappuram District. Testimony of DW1coupled by the documents relied on by the accused show that he is a person residing within the area of Veloor post office in Thrissur District. The records show a request made by the complainant himself that since summons could not be served and warrant could not be executed in the address of the accused mentioned in the complaint, the complaint may be consigned to Long Pending Case Register. That itself shows that the address shown in the complaint was not proper. Admittedly, there was no service of statutory notice which is a condition precedent for institution of the prosecution under Section 138 of the N.I Act. The court below correctly appreciated the evidence and found that the complaint was not maintainable on account of the non fulfilment of mandatory condition of serving a notice on the accused.
6. On re-appreciation of evidence, I find no reason to interfere with the findings of the court below. The accused was acquitted for valid reasons. The appeal has to fail.
In the result, the appeal is dismissed.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD, amk JUDGE.