The court emphasized the importance of establishing the identity of the accused and proper service of the statutory notice under Section 138 of the Negotiable Instruments Act for a successful prosecution.

This appeal is filed by the complainant against the acquittal of the accused of the offence under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short), as per the judgment dated 09.03.2006 in C.C. No.522 of 1998 on the file of the Judicial First Class Magistrate- V, Kozhikode.

2. The appellant/complainant filed the complaint against the accused/first respondent alleging that the accused borrowed Rs.75,000/- on 18.03.1997 from the complainant agreeing to repay the same on 18.01.1998 with interest at the rate of 24% per annum and towards part payment, the accused issued a cheque dated 18.01.1998 for Rs.75,000/- and subsequently, when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and thereafter, in spite of issuance of statutory notice, the accused failed to pay the cheque amount.

3. In the trial court, PWs 1 and 2 were examined and Exhibits P1 to P6 were marked from the side of the complainant and from the side of the accused, DW1 examined and Exhibits D1 and D2 were marked. Exhibits X1 to X8 were also marked.

4. The learned counsel for the appellant argued that the trial court ought to have found that the accused has not succeeded in rebutting the statutory presumptions in favour of the complainant and since it is in evidence that the complainant was not aware of the residential address of the accused or the father’s name of the accused at the time of filing the complaint and Exhibit P6 notice was returned after service of intimation of notice to the accused, there is constructive notice and therefore, the findings in the impugned judgment is liable to be set aside

5. The learned counsel for the accused/first respondent argued that there is no specific averment in the complaint to disclose the correct identity of the accused and there is also no specific averment regarding the date of execution and issuance of the cheque. It is also pointed out that the age, father's name and house address of the accused is not there in the cause title of the complaint and the complainant has also not examined any staff from the Postal Department to prove the endorsement regarding intimation in Exhibit P6 and the identity of the person to whom the said intimation was given.

6. The learned counsel for the first respondent also pointed out that after filing the complaint, the complainant has taken steps for issuance of warrant in a different address by showing the name of the accused as P. Sivadasan S/o. Nanu and the said fact is admitted by PW1 in cross examination and in the absence of satisfactory evidence regarding the identity of the accused and issuance of statutory notice in the correct address, there is no reason to interfere with the impugned judgment.

7. The complainant, when examined as PW1, deposed that the accused is known to him and that the accused borrowed Rs.75,000/- on 18.03.1997 promising to repay the same on 18.01.1998. In chief examination, PW1 stated that he issued lawyer’s notice to the accused and that the said notice was returned unserved.

8. In cross examination, PW1 stated that it is not known to him where the accused is residing and at the time when he met the accused, he was residing at Kalpetta. However, PW1 cannot remember the place where the accused resided at Kalpetta. He would say that the accused was residing with his family at Kalpetta. But, he cannot say the said location. PW1 stated that the age of the accused is not known to him.

9.In one part of the cross examination, PW1 stated that the person who borrowed the money is P. Sivadas, S/o. Nanu. But, later, he came to know that his correct name is Appu. PW1 denied the suggestion that the accused in the dock is T Sivadasan, S/o. Appu. PW1 also admitted that it is not known to him whether there was a staff with the name P. Sivadasan in Colour King Studio. PW1 also cannot say the identity of the person to whom the intimation is served regarding Exhibit P