Case Law Details
K. Basheer Vs C.K. Usman Koya (High Court Kerala)
It is also to be noted in this context that the offence u/s.138 of the Act is an offence which would be attracted on the ingredients above referred being satisfied. The statute also provides a presumption in favour of the holder which cannot be rendered otiose. We are, with utmost respect, unable to agree with the requirement mandated by Divakaran that the nature of the transaction should be disclosed in the notice; as that does not appear to be the correct position of law.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
1. This Appeal is filed against the order of acquittal in Criminal Appeal No.17/2002 on the file of Additional Sessions Court, Kozhikode. The first appellate court reversed the conviction and sentence passed under Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter ‘the Act’) and acquitted the respondent (hereinafter ‘the accused’). A learned Single Judge having come across conflicting opinions in Divakaran v. State of Kerala (2016 (4) KLT 233) and Surendra Das B. v. State of Kerala (2019 (2) KLT 895), the case was referred for resolution of conflict to the Division Bench.
2. The case of the appellant (hereinafter ‘the complainant’) is that accused owed an amount of Rs.30,00,000/- to the complainant and in discharge of the liability, issued Ext.P1 cheque. On presentation of the cheque for collection, it was returned due to ‘insufficiency of funds’ in the account of the accused. Statutory notices were issued in the residential as well as office address of the accused. In spite of receipt of notices, accused neither responded nor paid up the money. The complainant was examined as Pw1 and Exts.P1 to P6 marked and the accused examined himself as Dw1 and the Branch Manager as Dw2, marking Ext.D1 to D7 in defence.
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