Issuance of a statutory notice to the last known address of the accused is essential under Section 138; non-compliance invalidates a cheque dishonor complaint.

JUDGMENT

This appeal has been filed by the complainant in C.C.No.146 of

2004 on the file of the Judicial First Class Magistrate Court – II, Nadapuram, challenging the judgment dated 31.12.2005 through which the first respondent/accused was acquitted by the court, in a prosecution under Section 138 of the Negotiable Instruments Act .

2. According to the appellant/complainant, the first respondent/accused had purchased gold ornaments from a jewellery shop owned by the complainant on a credit basis and in the discharge of that liability, the accused had issued a cheque dated 13.10.2003 for a sum of Rs.1,00,000/- drawn on the account maintained by the first respondent/accused in Kakkattil Co- operative Rural Bank (Aroor Branch). The cheque was returned unpaid for the reason that the drawer's signature differs from the specimen signature maintained by the Bank and also on account of the reason that funds were insufficient to pay the amount under the cheque. According to the appellant/complainant, after complying with all legal formalities contemplated by the Negotiable instruments Act, the subject complaint was filed alleging the commission of an offence under Section 138 of the Negotiable Instruments Act .

3. The appellant/complainant examined himself as PW1.

The Branch Manager of the Kakkattil Co-operative Rural Bank, Aroor Branch was examined as PW2 and the postman of Nadapuram Post Office was examined as PW3. On a consideration of the matter, the learned Magistrate found that though the appellant/complainant has a case that all the entries on Exhibit P1 cheque were made by the first respondent/accused in her own handwriting, one of the reasons upon which the cheque was returned unpaid was that the signature on the cheque differs from the specimen signature of the first respondent/accused maintained with the Bank. The court, on a perusal of Exhibit P1 cheque, found that there was a clear difference in the writing on Exhibit P1 cheque from the admitted handwriting of the first respondent/accused. The court also found that there is a substantial difference in the signature and therefore found that the cheque has not been admitted or proved. Further, the court found that no attempt was taken to alter the charge even though the appellant/ complainant has a case that the first respondent/accused had purposefully and dishonestly signed the cheque using a different signature from her normal signature. The court also found that there was a failure to comply with the provisions of Section 138 of the Negotiable Instruments Act inasmuch as the appellant/complainant had failed to prove that he had sent the statutory notice to the last known address of the first respondent/accused. It was essentially on these grounds that the first respondent/accused was acquitted.

4. The learned counsel for the appellant/complainant would refer to the evidence of PW1 and PW3 to contend that the cheque was issued by the first respondent/accused in the discharge of a legally enforceable debt arising out of a transaction where he had sold gold ornaments to the first respondent/accused. He submits that the finding of the learned Magistrate that the execution of the cheque has not been proved is completely fallacious inasmuch as the first respondent/accused had purposefully and with dishonest intention used a different signature and different handwriting to make it appear that the cheque had been issued by a person other than the first respondent/accused. He would submit that his client is entitled to a statutory presumption under Section 139 of the Negotiable Instruments Act and that this aspect of the matter was completely overlooked by the learned Magistrate. He also submits that the finding that no proper statutory notice had been issued is completely incorrect as the notice had been issued to the permanent address of the first respondent/accused at Nadapuram and that the notice was purposefully not accepted by the first respondent/accused. He also submits