IMPORTANT POINT
The cheque remained unpaid since 2005, imposition of fine of Rs.55,000/-in default of which he shall undergo SI for two months, will serve the interest of justice- If the fine amount is deposited, the entire amount shall be paid to the complainant as compensation- Considering the fact that the appeal is of the year 2007 and that the judgment of the court below is reversed at the appellate stage, the accused can be given reasonable time to discharge the liability .

JUDGMENT :

1. The complainant in ST No. 1274/2005 of the Judicial First Class Magistrate-1 Palakkad, aggrieved by the acquittal of the accused under section 255(1) of Cr.P.C. for offence punishable under section 138 of the Negotiable Instruments Act, has preferred this appeal.

2. The case of the complainant was that, they were conducting a kuri, from the Kozhikode Branch, in which the accused had subscribed a chitty for Rs.1,00,000/-. He bid the chitty for Rs.50,000/-and received the amount on execution of necessary documents. He thereafter failed to remit the future installments. Towards the discharge of the existing liability, the accused executed and delivered to the complainant a cheque for a sum of Rs.47,500/-drawn on his account. The cheque was presented for collection but was returned dishonoured. Statutory notice was issued, which was neither replied nor the amount paid. Hence, the complaint was laid alleging commission of offence punishable under section 138 of the NI Act.

3. Before the court below, the accused appeared and pleaded innocence. On the side of the complainant, his power of attorney holder was examined as PW1 . Exts.P1 to P8 were marked. There was no defence evidence . The court below, on an evaluation of the available materials concluded that the complainant had failed to comply with the statutory formalities as envisaged under the NI Act and acquitted the accused. This is under challenge .

4. Heard the learned counsel for the complainant and the learned counsel for the accused.

5. The case of the complainant is sought to be established through the oral testimony of PW1. Ext.P2 is the cheque dated 2/2/2005. The cheque was returned dishonoured as evidenced by Ext.P3 memo dated 8/2/2005, issued by the drawee Bank. Ext.P4 dated 2/2/2005 is the memo issued by the payee bank. Ext.P5 is the statutory notice dated 7/3/2005. Ext.P6 is the postal receipt dated 9/2/2005 evidencing the dispatch of the original of Ext.P5. Ext.P7 is the acknowledgment card which bears the signature of the accused. The complaint was laid on 23/4/2005.

6. In the complaint, it was specifically pleaded that the accused received lawyer notice on 10/3/2005. However, the court below, referring to Ext.P7 acknowledgment card, held that it did not prove the date of service of lawyer notice and the complaint failed to prove the actual date of service of the lawyer notice. It was held that though complainant had stated in the complaint that it was served on the accused on 10/3/2005, in the chief affidavit of PW1 it was not averred. The court below on the basis of the above, held that the serving of notice on accused was a fact in issue which has to be proved by the complainant like any other fact in issue and there is no presumption as to the serving of lawyer notice. The contention of the counsel for the complainant that the impression of postal seal with date inscribed on Ext.P7 may be considered as the date of service of notice was negatived on the reasoning that the date of actual service may be different from the date inscribed on the acknowledgment card.

7. The accused has no case that statutory notice was not served on him. He has also no case that notice was not sent in correct address or that the signature seen in Ext.P7 was not his signature. The crucial question that arises is whether the statute requires the complainant to establish the actual date of service of notice on the accused. Though Ext.P7 acknowledgment card bears the signature of the accused, he has not written the date of receipt. Only his signature is affixed on the acknowledgment card. The stamp of the Kozhikode post office is seen affixed bearing the date as 10/3/2005. In the complaint it was specifically pleaded that the notice was served on 10/3/2005. The acknowledgment card bearing the above date was produced along with the complaint. The averment that it was served on 10/3/2005 was not challenged in the cross examination of PW1. In the light of the above and in the light