M K SHAJI Vs. P KHASIM

JUDGEMENT

(1.) The appellant and the first respondent were the complainant and the accused respectively in CC No. 792 of 2008 on the file of the Judicial First Class Magistrate Court, Koyilandy. The latter was accused of having committed the offence under Section 138 of the Negotiable Instruments Act. The allegation was that on 23.07.2008, he borrowed from the appellant Rs. 1,50,000/- undertaking to repay it within one month; later, he issued Ext.P1 cheque dated 10.09.2008 to discharge the liability; on presentation, the cheque was returned dishonoured for want of sufficient fund in the account; and in spite of demand by notice, he did not pay the amount. The trial court found that there is no evidence to prove execution of the cheque. It acquitted the first respondent. The order of acquittal is challenged in this appeal.

(2.) Heard the learned counsel for the appellant and the first respondent.

(3.) In the proof affidavit filed by the appellant's father, who was examined as PW1, it is stated that the appellant and the first respondent were working together at Damam in Soudi Arabia and they were friends. Before the complaint was filed, the appellant issued a notice to the first respondent, which was marked as Ext.P5. It was returned with the endorsement "addressee gone to gulf country". Since the appellant and the first respondent were working abroad, the former must have been aware that the first respondent was not available in India. It also cannot be denied that the appellant knew the foreign address of the first respondent. Knowing fully well that he was abroad, he issued Ext.P5 notice at his address in Kerala. It cannot be said that there was proper notice.