HIGH COURT OF KERALA
K VINOD CHANDRAN, M.R.ANITHA, JJ
K.BASHEER – Appellant
Versus
C.K.USMAN KOYA – Respondent
Key Points:- The judgment holds that omission of the transaction details in the notice does not invalidate the notice under Sec.138. (!) (!) - It rejects the proposition that the notice must disclose the nature of the transaction; no such form is prescribed and lack of such detail does not render the notice invalid. (!) (!) - The decision reiterates the five ingredients that must be present in the complaint for Sec.138 prosecution, with the material being drawn from the ingredients and the requirement of a 15-day payment after notice. (!) (!) (!) - The presumption under Sec.139 and 118(a) can be rebutted by the accused if the evidence shows lack of valid consideration; the burden then shifts to the complainant to prove consideration. (!) (!) - The appellate court’s acquittal is upheld where the complainant fails to prove valid consideration and the source of funds, despite a proved issuance of the cheque. (!) (!) - There is no fault in the notice regarding the 30-day demand from receipt of information of dishonour; the statutory requirement for demand is satisfied. (!) (!) - The decision clarifies the legal framework distinguishing prosecution under Sec.138 from Cr.P.C.procedures. (!) (!)
JUDGMENT
Dated : 17th March, 2021
1. This Appeal is filed against the order of acquittal in Criminal Appeal No.17/2002 on the file of Additional Sessions Court, Kozhikode. The first appellate court reversed the conviction and sentence passed under Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter 'the Act') and acquitted the respondent (hereinafter 'the accused'). A learned Single Judge having come across conflicting opinions inDivakaran v. State of Kerala ( 2016 (4) KLT 233 ) and Surendra Das B. v. State of Kerala (2019 (2) KLT 895), the case was referred for resolution of conflict to the Division Bench.
2. The case of the appellant (hereinafter 'the complainant') is that accused owed an amount of Rs.30,00,000/- to the complainant and in discharge of the liability, issued Ext.P1 cheque. On presentation of the cheque for collection, it was returned due to 'insufficiency of funds' in the account of the accused. Statutory notices were issued in the residential as well as office address of the accused. In spite of receipt of notices, accused neither responded nor paid up the money. The complainant was examined as Pw1 and Exts.P1 to P6 marked and the accused examined himself
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