2021 (11) TMI 159

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....ection 138 of the Negotiable Instruments Act. 2. According to the appellant/complainant, the first respondent/accused had purchased gold ornaments from a jewellery shop owned by the complainant on a credit basis and in the discharge of that liability, the accused had issued a cheque dated 13.10.2003 for a sum of Rs. 1,00,000/- drawn on the account maintained by the first respondent/accused in Kakkattil Co- operative Rural Bank (Aroor Branch). The cheque was returned unpaid for the reason that the drawer's signature differs from the specimen signature maintained by the Bank and also on account of the reason that funds were insufficient to pay the amount under the cheque. According to the appellant/complainant, after complying with all....

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.... the Negotiable Instruments Act inasmuch as the appellant/complainant had failed to prove that he had sent the statutory notice to the last known address of the first respondent/accused. It was essentially on these grounds that the first respondent/accused was acquitted. 4. The learned counsel for the appellant/complainant would refer to the evidence of PW1 and PW3 to contend that the cheque was issued by the first respondent/accused in the discharge of a legally enforceable debt arising out of a transaction where he had sold gold ornaments to the first respondent/accused. He submits that the finding of the learned Magistrate that the execution of the cheque has not been proved is completely fallacious inasmuch as the first respondent/ac....

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....P1 cheque and had misused it to make it appear that the cheque had been issued by the first respondent/accused in the discharge of a legally enforceable debt. She also submits that if the alleged transaction was true, the least that the appellant/complainant should have done was to produce bills/invoices showing the transaction through which the first respondent/accused had purchased the gold as alleged from the shop of the appellant/complainant. She also submits that as long as the execution of the cheque itself has not been admitted or proved, an offence under Section 138 of the Negotiable Instruments Act cannot be made out. 6. The question as to whether there is proof of execution of the cheque or as to whether the cheque was issued i....

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....ther that since the mother of the first respondent/accused had refused to share the Bangalore address, the notice could not be served on the first respondent/accused. 8. On a reading of the evidence rendered by PW1 as well as the evidence rendered by PW3, the postman, who stated that after the marriage of the first respondent/accused, she was not staying at Nadapuram, it is clear that despite the knowledge that the first respondent/accused was not staying at Nadapuram, the appellant/complainant had for reasons best known to him decided to issue notice to the former address of the first respondent/accused at Nadapuram. I cannot ignore the statement made by PW1, the complainant, in the box that he knew even at the time of issuance of Exhib....