Dismissed

M.M.Rasheed v. Faisal & Another

Kerala HC19 Sept 2012CRL.A/183/2008

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a criminal appeal by a complainant aggrieved by the acquittal of an accused under Section 138 of the Negotiable Instruments Act. The court held that the acquittal was valid because the complainant knew the accused was abroad, sent a notice returned as 'out of India,' and failed to effect proper service as required by law.

What did the court decide?

The criminal appeal was dismissed, confirming the acquittal of the accused.

M.M.Rasheed Vs Faisal & Another — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934

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CRL.A.No. 183 of 2008 (C)

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CRLP.1298/2007 DATED 03-01-2008 CC.29/2006 of J.M.F.C., KODUNGALLUR

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APPELLANT/COMPLAINANT:

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M.M.RASHEED ARREPURATH VEETTIL, ERIYAD VILLAGE, KODUNGALLUR TALUK.

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BY ADVS.SRI.K.A.JALEEL

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SRI.C.ANILKUMAR (KALLESSERIL)

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SRI.N.K.PAULOSEKUTTY

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RESPONDENTS/ACCUSED& :STATE:

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FAISAL, AGED 28, S/O.ABU, KARAPPAM VEETTIL, MURIYAM THODE DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK.

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SRI.V.M.KRISHNAKUMAR - FOR R1 BY ADV. PUBLIC PROSECUTOR SMT.LALIZA.T.Y

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN,J.

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Crl.A.No.183 of 2008

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--------------------------------------------------------Dated this the 19^th day of September, 2012

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JUDGMENT

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The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 29/06/2007 in C.C.No.29 of 2006 of the court of the Judicial Magistrate of the First Class-I, Kodungallur by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

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The case of the appellant/complainant is that the accused issued Ext.P1 cheque for an amount of `75,000/which when presented for encashment was dishonoured and the amount was not repaid in spite of a statutory notice and therefore the accused committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant himself was examined as PW.1 and produced Exs.P1 to P6 documents. From the side of the

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Crl.A.No.183/2008

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defence DW.1 and DW.2 were examined and Exts.D1 to D6 were marked. The trial court, after considering the entire evidence and materials, acquitted the accused on the ground that there was no proper notice. It is the above finding and order of acquittal that is challenged in this appeal.

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Adv.Sri.C.Anilkumar Kallesseril, counsel for the appellant submitted that the finding of the court below is incorrect, since notice was sent to the correct address of the accused in his Indian address and the complainant was not aware of the foreign address of the accused. Therefore in the light of the decisions reported in Madhu v. Omega Pipes Ltd. [1994(1) KLT 441], Mohammed Ashraf v. Sharafuddin [2003 (3) KLT SN 77 Case No.104], Bhavani Auto Distributors v. Muraleedharan [2007(3) KLT 392] and Alavi Haji v. Muhammed [2007(3) KLT 77 (SC)], it is submitted that the finding of the court below is incorrect.

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Crl.A.No.183/2008

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On the other hand, Adv.Sri.V.M.Krishna Kumar, counsel for the first respondent submitted that the complainant was aware of the fact that the accused was abroad at the relevant point of time and therefore in the light of the decision reported in George v. Jose [2006 (3) KLT 863], the finding of the court below is fully justified and there is no merit in the appeal.

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Though the learned counsel has cited authorities which I indicated earlier the same has no application in the light of the facts and circumstances involved in the present case, which is entirely different from the facts and circumstances involved in those reported decisions.

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From the evidence of PW.1 it is crystal clear that he was aware of the fact that the accused was in Gulf during the relevant period of time. The learned Magistrate in his judgment quoted the relevant portion of the deposition of PW.1 which read as follows:-

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Crl.A.No.183/2008

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“ന��ട�സ� അയചത� ഞ�ന പറഞ പപക�ര� ആണ� , ആ സമയഠ പപത� വ�ന�ശത� ആ ണണന�അറ�യ�മ�യ�ര!ന!. അവ�ണ# ഉളള address അറ�യ�മ�യ�ര!ന&. P5 അയചത� പപത�യ!ണ# ��ട�ണ' address ല ആണ�. “Addressee out of India" എന�ണ� മ#ക�യത� എന� അറ�യ�ല. ”

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From the above evidence of PW.1-the complainant, it is crystal clear that the complainant was fully aware of the fact that the accused was abroad and he was also aware of the foreign address of the accused at the relevant point of time. It is also relevant to note that the notice, which is alleged to have been served by the complainant, was returned with the endorsement that addressee out of India. Still then no proper step was taken by the complainant for the effective service of notice on the respondent as contemplated by the proviso to Section 138 of the N.I. Act. If that be so, the conclusion that can be arrived is that there is no proper service of notice and demand of the money as contemplated under the proviso to Section 138 of the N.I. Act. The failure on the part of the complainant in this

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regard shows that the statutory requirement in terms of Section 138 of the N.I. Act is not satisfied. If that be so, I find no reason to interfere with the findings of the court below and the consequent acquittal of the accused/respondent.

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In the result, there is no merit in this appeal and accordingly the same is dismissed.

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V.K.MOHANAN, JUDGE.

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skj

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True copy

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P.A. to Judge

M.M.Rasheed v. Faisal & Another

Case brief

What is this about?

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M.M.Rasheed v. Faisal & Another

Case brief

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