Crl. A. No. 203 of 2001 (C). Case: K. O. Chacko Vs Kurian P. V. and Ors.. Kerala CEGAT & CESTAT High Court
| Case Number | Crl. A. No. 203 of 2001 (C) |
| Counsel | For Appellant: Bechu Kurian Thomas; Prakash Puthiadam; Markose Thomas, Advs. and For Respondents: Markose Thomas and Smt. Kochumol Koduvath, Advs. and P. M. Habeeb, P. P. |
| Judges | K. A. Abdul Gafoor, J. |
| Issue | Negotiable Instruments Act (26 of 1881) - Section 138 |
| Citation | 2006 CriLJ 4383 |
| Judgement Date | May 30, 2006 |
| Court | Kerala CEGAT & CESTAT High Court |
Judgment:
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The complainant before the trial Court is the appellant herein. He filed a complaint against respondents 1 and 2 herein, alleging an offence under Section 138 of the Nagotiable Instruments Act, 1881 (for short 'the Act'). The trial Court acquitted the accused. Hence this appeal.
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Whether there was notice, in terms of Clause (b) of the proviso to Section 138 of the Act, is the moot question involved in this case.
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Ext. P1 cheque issued by the accused bounced, when presented to the bank.This resulted in a notice, copy of which is produced as Ext. P3. But, the notice addressed to the accused returned back to the sender unclaimed. Ext. P5 series are the notices so returned. In the light of these facts, it is contended by the appellant that he had discharged the part of his duty in terms of Clause (b) of the proviso to Section 138 of the Act, by making a demand in the notice addressed to on the accused persons, for repayment of the amount covered by the cheque-Ext. P1, which bounced for want of sufficient funds in the account maintained by the accused. The postman took the notice to the residence of the accused. They were absent. It was repeated on three days. Thereafter, nobody claimed it. Therefore, it was returned 'unclaimed returned to sender'. When those notices were addressed to the accused/respondents and those were returned as unclaimed, it should be taken that the notice mentioned in clause (b) of the proviso to Section 138 had been completed and there was a demand in writing of the amount covered by the cheque. In this respect, the decision reported in Bhaskaran v. Sankaran Vaidhyan Balan (1999 (7) SCC 510): (1999 Cri LJ 4606) is relied on. It is submitted that when a notice is returned unclaimed, it shall be deemed to have been served on the addressee. The decision reported in Joseph Jose v. J. Baby and Others (2002 (2) Ker LJ 334: (2002 Cri LJ 4392) is also relied on to submit that the endorsement 'unclaimed' in Ext. P5 series can be taken as 'refusal' and therefore, there is due compliance of the requirement of a notice under Section 138 of the Act. Therefore, the order of acquittal was not justified, the counsel contends.
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It is submitted by the counsel for the accused that before the return of notice, no intimation memo was served on the accused. The endorsement on Ext. P5 series will reveal that when the postman reached the premises of the addressees, on 9-10-1997, 13-10-1997, 14-10-1997 and 15-10-1997, they...
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