TaxTMI 
TaxTMI 
2026 (6) TMI 841
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....e learned counsel appearing for the 1st respondent/accused. Also heard the learned Public Prosecutor representing State of Kerala. Perused the judgment under challenge and the records of the trial court. 3. The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act ('NI Act' for short) by the accused, when cheque for Rs.90,000/- issued to discharge the liability of Rs.90,000/- alleged to be borrowed by the accused from the complainant got dishonoured when it was presented for collection. 4. The learned Magistrate ventured the matter and recorded evidence. PW1 was examined. Exts.P1 to P5 were marked on the side of the complainant. No defence evidence was adduce....
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.... led to issuance of Ext.P1 cheque, which, in fact, failed to be shaken during cross examination. Therefore the verdict would require interference. 6. The learned counsel for the 1st respondent/accused supported the verdict and contended that there was no legal notice in this matter and the transaction was failed to be proved by the appellant. Thus the verdict is liable to be sustained. 7. Points arise for consideration are: (i) Whether the learned Magistrate is right in holding that the accused is not guilty of the offence under Section 138 of the N.I Act? (ii) Is it necessary to interfere with the judgment in any manner? (iii) The order to be passed? 8. In this case, the case advanced by the appellant is....
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....though he had repaid Rs.8,000/- in full discharge of the said liability, including the interest thereof, the cheque was not returned and the same was misused for the purpose of this case. 10. The learned Magistrate while evaluating the evidence of PW1 observed that in a criminal case the burden of proof lies on the complainant and only on proof of the same, presumption under Section 139 of the N.I Act would get attracted. Going through the evidence of PW1, he had fully supported the transaction as averred in the complaint and his evidence regarding borrowing of Rs.90,000/- by the accused on 25.04.2005 and the consequential issuance of Ext.P1 cheque after 3 months are not at all shaken, during cross-examination. In a prosecution alleging ....
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....t, when summons was issued to the accused in the address shown in the notice he had accepted the same and appeared before the court as a sequel thereof. In fact, issuance of notice under Section 138(b) of the N.I Act and acceptance of the same by the accused are two separate events, though service of notice is having relevance to count the limitation period for filing the complaint. Coming to issuance of the demand notice contemplated under Section 138(b) of the N.I Act, when notice would be issued in the known address of the drawer of the cheque, the same would suffice the requirement of notice. In the decision reported in [2007(3) KLT 77], Alavi Haji v. Palappetty Muhammed, the Apex Court categorically held that if demand notice would ....