Hussain vs Mammi Haji
2021 Latest Caselaw 18787 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
                         CRL.A NO. 2460 OF 2006
   AGAINST THE JUDGMENT DATED 28.04.2006 IN C.C.NO.1005/2002 OF
            JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR
APPELLANT/COMPLAINANT:

            HUSSAIN
            S/O MAMMALI HAJI,POTTAMMEL VAKAYIL HOUSE, NADUVATTOM
            AMSOM, CHELLOOR DESOM, TIRUR.

            BY ADVS.
            SRI.P.M.KUNJUMOIDEENKUTTY
            SRI.P.A.MOHAMMED ASHROF
            SRI.T.K.SAIDALIKUTTY




RESPONDENTS/ACCUSED:

    1       MAMMI HAJI
            S/O.BAVU HAJI, KORATHU ILLATHUVALAPPIL HOUSE,
            KUTTIPPURAM AMSOM DESOM, TIRUR.

    2       STATE OF KERALA, REPRESENTED BY THE
            PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM.

            BY ADVS.
            R1 BY SRI.BABU S. NAIR
            R2 BY SRI.RANJITH GEORGE, GOVERNMENT PLEADER




     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2460 OF 2006

                                            2


                                     JUDGMENT

This appeal has been filed by the complainant in C.C.No.1005

of 2002 on the file of the Judicial First Class Magistrate Court, Tirur

challenging the judgment dated 28.04.2006 through which the

respondent/accused was acquitted in a prosecution alleging the

commission of offence under Section 138 of the Negotiable

Instruments Act.

2. A reading of the judgment shows that the

respondent/accused was acquitted on the ground that the statutory

notice required to be sent in terms of Section 138(b) was not issued

in the proper address of the respondent/accused.

3. The learned counsel appearing for the appellant would

submit that this is not a case where a statutory notice had not been

issued under Section 138(b) of the Negotiable Instruments Act. He

contends that the mere fact that there is a slight difference in the

initials of the respondent/accused and the house name is also

slightly different does not mean that the respondent/accused

should have been acquitted on the ground that there was no proper

notice. The learned counsel appearing for the respondent/accused

would submit that this is a case where admittedly the

appellant/complainant and the respondent/accused were relatives CRL.A NO. 2460 OF 2006

and well known to each other. He submits that there was a clear

failure to comply with the provisions of Section 138(b) and that the

accused was rightly acquitted by the learned Magistrate.

4. I have considered the contentions raised. I have also

perused the lower court records. The lawyer notice which was

issued by the complainant to the respondent/accused was

produced and marked as Ext.P3 before the trial court. A perusal of

Ext.P3 will show that the address of the respondent/accused was

shown as K.V.Mammi Haji, S/o.Bava Haji, Korath Illathu Valappil (H),

Kuttippuram, whereas in the postal cover in which the notice was

sent, the address was K.V.Mammi Haji, Kolothu Illath Valappil (H),

Kuttippuram.P.O, Kuttippuram. The postal cover containing the

notice, which was returned to the sender (the lawyer engaged by

the appellant/complainant) with the endorsement "not known". The

postal cover containing the notice was marked as Ext.P5. Normal

human conduct or normal prudence would indicate that the

appellant/complainant would have taken steps to serve notice in

the correct address especially when the respondent/accused was

well known to him and the postal cover had been returned with the

endorsement "not known". I am therefore constrained to hold that

the finding of the learned Magistrate that there was no proper

compliance of Section 138(b) of the Negotiable Instruments Act is CRL.A NO. 2460 OF 2006

correct.

In that view of the matter, I am of the opinion that there is no

merit in this appeal and it is, accordingly, dismissed.

Sd/-

GOPINATH P.

JUDGE DK