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2005(1) Bankmann 415
KERALA HIGH COURT
J.M. James, J.
Janardhanan — Petitioner
versus
Jayachandran — Respondent
Crl. A. No. 349 of 1999
Decided on 8-11-2004
For the Petitioner:Kaleeswaram Raj. Advocate.
For the Respondent:K.S. Madhusoodanan, C.P. Peethambaran, Advocates and K. Harilal, Public Prosecutor.
IMPORTANT POINT
Merely because counsel failed to put his signature, a notice issued under Section 138(b) of Negotiable Instruments Act, cannot said to be inadmissible in evidence.
Headnote:Negotiable Instruments Act, 1881—Section 138—Evidence Act—Section 63—Transfer of Property Act—Section 106—Dishonour of cheque—Notice—Sending of notice to accused without the signature of Advocate—Validity—Merely because concerned counsel failed to put his signature, it cannot be held as inadmissible in evidence—No prejudice caused to accused in settling the account or sending reply stating reasons in not doing so—Notice issued by complainant is valid.
Facts of the case:
A)Appellant herein is the complainant in a case filed under Section 138 of Negotiable Instruments Act. The Magistrate found the accused not guilty for want of statutory notice under Section 138(b). Therefore dismissed the complaint and acquitted the accused.
B)The question for consideration in this appeal is whether a notice contemplated under the Act was sent to the accused but inadvertently without the signature of the Advocate on it, could be considered as a valid notice.
C)The accused has not contended that due to want of signature in the notice, he was prevented from making payment of the cheque amount within the permitted period. Merely because the concerned counsel had failed to put his signature or certify the same as true copy, it cannot be held inadmissible in evidence and no prejudice has been caused to accused because of the said unsigned notice. The Court held that there was a valid notice issued under the Act by the appellant to the accused, who has received it and failed to comply with the demand. Impugned order of acquittal set-aside.
Result: Appeal allowed.
J.M. James, J.—The complainant is the appellant. He filed C.C. No. 556/95 before the Judicial First Class Magistrate, Payyannur under Section 138 of the Negotiable Instruments Act, in short ‘the Act’ against the 1st respondent/accused. The parties adduced evidence. The copy of the lawyer notice issued on behalf of the complainant was not authenticated by the Advocate, who produced the same before the Court. Therefore, the marking of the notice was objected. A petition under Section 311 Cr.P.C. with a copy of the lawyer notice was filed praying to recall PW1, the complainant, and mark the copy of notice as Ext.P7. But that was rejected on the ground that it does not comply with the provisions under Section 63 of the Evidence Act. Thereafter, the learned Magistrate found the accused not guilty for want of statutory notice under Clause (b) of the proviso to Section 138 of the Act and therefore, dismissed the complaint and acquitted the accused. Hence the complainant came up in appeal before this Court.
2. The question that arises for consideration is whether a notice contemplated under the Act was sent to the accused, but inadvertently, without the signature of the Advocate on it, could be considered as a valid notice.
3. The learned counsel appearing for the appellant relied on Abdurehim Sait v. Sahul Hameed1 and Viswanathan v. Ramachandran Nair2 to show that even if there is no signature, which was omitted inadvertently to be affixed on the, notice, would not invalidate the said notice. On the other hand, the learned counsel for the 1st respondent/accused contended, relying on Patel Maganbhai Bapujibhai & Ors. v. Patel Ishwarbhai Motibhai & Ors.3 and Kalyan Singh v. Smt. Chhoti & Ors.4 that unless the Court accepts the copy of the notice which comes within the scope of Section 63 of the Evidence Act, the same cannot be accepted as secondary evidence. Therefore, prayed to sustain the rejection of the complaint by the Magistrate.
4. The complainant presented Ext. P1 cheque, which he was holding as issued by the accused, on 10.6.1995 for clearance. It was dishonoured under Ext.P2 memo dated 11.7.1995 for the reason ‘fund insufficient’; as shown in Sl. No.15. The complainant thereafter issued a notice dated 17.7.1995. Ext.P3 is the postal receipt dated 18.7.1995. Ext.P4 is the postal acknowledgment card dated 9.7.1995, which reveal that the 1st respondent had received the notice dated 17.7.1995. Along with the complaint, the advocate filed a copy of the notice, but without any authentication or certifying the same as true copy of the original. The contentions were raised before the Court below and as discussed above. The learned Magistrate rejected the plea of the complainant.
5. The learned counsel for the 1st respondent accused have relied on Kalyan Singh’s case (cited supra) to emphasise his argument that the copy of the notice without signature of the Advocate cannot be accepted. The facts of Kalyan Singh’s case show that Ext.P3, a sale deed and Ext. P4 a Will had come up before the Apex Court for consideration. The plaintiffs’ title related back to the sale deed which was in the year 1975 A.D. It was stated to be a registered sale deed, through which the property was sold. The plaintiff has not produced the original sale deed nor the certified copy of it. An alternate copy of the sale deed, as Ext.P3; was produced stating that it was a copy that was given along with the original copy for registration and after registration, the said copy had been returned to the party .The person who produced the same, Gopal Prasad, had no personal knowledge about the registration of the sale deed. He did not produce the Register to establish that the deed was actually registered and a copy was kept in the record. There was no endorsement to that effect also, in Ext.P3 produced by him. Therefore, the Apex Court, discussing Section 63 of the Evidence Act and clauses therein, held that Ext.P3 cannot be considered as a secondary eviden
