TMI Blog2021 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress of the first respondent/accused at Nadapuram - I am constrained to hold that there is a clear failure to comply with the statutory mandate to issue a notice, as required under the provisions of the Negotiable Instruments Act. It is not necessary to consider the question as to whether Exhibit P1 cheque was actually executed by the first respondent/accused and as to whether the learned Magistrate had gone wrong in finding that an offence under Section 138 of the Negotiable Instruments Act could not be made out on account of the difference in the signature on Exhibit P1 cheque with the admitted signature of the first respondent/accused - a complaint under Section 138 can be filed only after complying with the statutory formalities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant, after complying with all legal formalities contemplated by the Negotiable instruments Act, the subject complaint was filed alleging the commission of an offence under Section 138 of the Negotiable Instruments Act. 3. The appellant/complainant examined himself as PW1. The Branch Manager of the Kakkattil Co-operative Rural Bank, Aroor Branch was examined as PW2 and the postman of Nadapuram Post Office was examined as PW3. On a consideration of the matter, the learned Magistrate found that though the appellant/complainant has a case that all the entries on Exhibit P1 cheque were made by the first respondent/accused in her own handwriting, one of the reasons upon which the cheque was returned unpaid was that the signature on the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuch as the first respondent/accused had purposefully and with dishonest intention used a different signature and different handwriting to make it appear that the cheque had been issued by a person other than the first respondent/accused. He would submit that his client is entitled to a statutory presumption under Section 139 of the Negotiable Instruments Act and that this aspect of the matter was completely overlooked by the learned Magistrate. He also submits that the finding that no proper statutory notice had been issued is completely incorrect as the notice had been issued to the permanent address of the first respondent/accused at Nadapuram and that the notice was purposefully not accepted by the first respondent/accused. He also sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the cheque was issued in discharge of a legally enforceable debt and the question of applying the statutory presumption and examining the question as to whether the first respondent/accused had been able to rebut the statutory presumption will arise only if it is found that the appellant/complainant had issued a statutory notice as provided under Section 138 of the Negotiable Instruments Act. Therefore, I intend to consider that issue first. 7. PW1, the appellant/complainant in his cross-examination has specifically stated that even at the time of execution of Exhibit P1 cheque, he was aware that the first respondent/accused was staying along with her husband at a place called Vanimel and that he had actually issued a prior noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of issuance of Exhibit P1 cheque that the first respondent/accused was not staying at Nadapuram and that she was staying with her husband at Vanimel. Therefore, I am constrained to hold that there is a clear failure to comply with the statutory mandate to issue a notice, as required under the provisions of the Negotiable Instruments Act. In the light of the above finding, it is not necessary to consider the question as to whether Exhibit P1 cheque was actually executed by the first respondent/accused and as to whether the learned Magistrate had gone wrong in finding that an offence under Section 138 of the Negotiable Instruments Act could not be made out on account of the difference in the signature on Exhibit P1 cheque with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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