MOHANAN Vs. BIBHUKUMAR
LAWS(KER)-2003-4-47
HIGH COURT OF KERALA
Decided on April 04,2003

MOHANAN Appellant
VERSUS
BIBHUKUMAR Respondents

JUDGEMENT

- (1.) THE complainant is the appellant. He is aggrieved by the verdict of not guilty and the consequent judgment of acquittal rendered by the learned Magistrate in favour of the accused-respondent.
(2.) THE complainant alleged that the respondent-accused owed an amount of Rs. 40,000/- to him. When repayment was demanded, two cheques for Rs. 20,000 dated 21. 9. 1993 and 8. 2. 1994 were issued. This prosecution relates to one of those two cheques. When the said cheque was presented for encashment it was dishonoured by the bank on the ground of insufficiency of funds. Notice of demand was issued. THEre was no useful response. Payment was not effected. It is in these circumstances that the complainant came to court with this complaint under S. 138 of the Negotiable Instruments Act. In respect of the other cheque also there was a prosecution. THE same has been compromised after making some payment, it is concerned by both sides. The learned Magistrate took cognizance. The accused entered appearance and denied the offence alleged against him. Thereupon the complainant examined himself as PW1 and the Manager of the drawee bank as PW2. Exts. P1 to P6 were marked. The accused denied all circumstances which appeared in evidence and which were put to him. The gravamen of the defence put forward by the accused is that though the cheque bears his signature, it was not issued for the due discharge of any legally enforceable debt/liability. He was compelled and coerced to part with Ext. P2 cheque. He examined himself as DW1 and a friend of his as DW2. Exts. D1 to D3 letters were also proved. The learned Magistrate came to the conclusion that all statutory formalities have been complied with. However, the learned Magistrate took the view that there is no evidence to show that the cheque was issued for the due discharge of a legally enforceable debt/liability.
(3.) THE learned counsel for the appellant/ complainant assails the finding that the cheque is not proved to have been issued for the due discharge of a legally enforceable debt/liability. THE learned counsel for the respondent/ accused on the contrary supports the said finding but assails the finding that a proper notice of demand has been served. I have considered all the contentions. I find no merit in the challenge raised by the respondent/ accused against the finding that a proper notice of demand has not been served. S. 138 of the Negotiable instruments Act only obliges the complainant to give a notice of demand. We have satisfactory evidence to show that a notice of demand by prepaid post was despatched in the correct address of the accused. The same has been served also. The acknowledgment card with the signature of the accused therein is produced before Court. The learned Magistrate was in these circumstances eminently correct in invoking the presumption of due service under S. 114 of the evidence Act and S. 27 of the General Clauses Act. I find the said finding to be eminently correct and the same does not call for any interference.;


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