CRL.A.No.2031 OF 2005

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942** ## **CRL.A.No.2031 OF 2005** **AGAINST THE JUDGMENT IN CC NO.19/2005 DATED 31-08-2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE, HARIPPAD** ## **APPELLANT/COMPLAINANT:** **SUKUMARA PILLAI S/O.KRISHNA PILLAI,SUMANGALI VEEDU, MUTHUKULAM TEHKKUM MURI, MUTHUKULAM VILLAGE.** **BY ADV. SRI.B.RENJITH KUMAR** ## **RESPONDENTS/ACCUSED & STATE:** **1 BABURAJ, AGED 37 YEARS S/O.VASUDEVAN, PUTHUSSERY VEEDU, KARIMULAKKAL MURI, CHUNAKKARA VILLAGE.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY SHRI.SANTHOSH PETER, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.2031 OF 2005 2 ## **J U D G M E N T** **The above appeal is filed by the complainant in C.C. No.19 of 2005 on the files of the Judicial First Class Magistrate-1, Harippad. The 1[st] respondent herein is the accused in the above case. The above case was filed by the appellant against the 1[st] respondent for prosecuting him under Section 138 of the Negotiable Instruments Act, 1881. (hereinafter the parties are mentioned according to their rank before the trial court)** **2. The case of the complainant in nutshell is as follows:** **The accused had borrowed an amount of Rs.50,000/from the complainant. Towards the payment of the said legally enforceable debt amount, the accused had issued a cheque on 11.11.2004. But the cheque when presented in the bank was dishonoured due to “stop payment” instruction by the accused. Though statutory notice demanding the said amount was issued to the accused, he did not make the payment even after receipt of the** CRL.APPEAL NO.2031 OF 2005 3 ## **same. Hence, the complaint.** **3. To substantiate the case, PW1 and PW2 were examined on the side of the complainant. Exhibits P1 to P8 are the exhibits marked on the side of the complainant. Exhibits D1 and D2 are the exhibits on the side of the defence.** **4. On going through the evidences and documents, the lower court found that, the accused is not guilty for the offence punishable under Section 138 of the Negotiable Instruments Act. Aggrieved by the order of acquittal,the present appeal is filed by the complainant.** **5. The appeal was admitted and notice was issued to the accused. Even though, the accused received notice, he refused to appear before this Court. Hence, this appeal is heard after hearing the counsel for the complainant and the learned Public Prosecutor.** **6. The short point on which the learned Magistrate acquitted the accused is that, the statutory notice received by the accused does not contain the signature of the Advocate. Exhibit P5 is the copy of notice** CRL.APPEAL NO.2031 OF 2005 4 **produced by the complainant. The accused produced the original of Ext.P5 as Ext.D1. In Ext.D1, the Advocate has not signed. The question to be decided is, whether a lawyer notice issued, without the signature of the lawyer can be treated as a defective notice.** **7. There is no form of notice is prescribed under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act. The proviso only says that** _**“the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque”.**_ **There is nothing in clause (b) of the proviso to Section 138 of the Negotiable Instruments Act to show that, it should be a lawyer notice and the notice should be a signed notice. The literal meaning of 'notice' as per Chambers 20[th] Century Dictionary is “** _**intimation:announcement:information:warning:a writing, placard,board etc. conveying an intimation or warning.”**_ **As per the Oxford Advance Learners’ Dictionary, New 9[th] edition, the ‘notice’ is interpreted as “** _**paying**_ CRL.APPEAL NO.2031 OF 2005 5 ## _**attention, giving information, announcing, warning**_ _**etc..”**_ **P.Ramanatha Aiyar’s Concise Law Dictionary defines ‘notice in writing' like this** _**: “The word ‘notice’ denotes merely an intimation to the party concerned of a particular fact. It cannot be limited to a letter. Notice may take several forms. It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed.”**_ **8. From the above literal meaning of 'notice', it is clear that, nowhere it is stated that, a notice should be in a signed form. As stated above, Clause (b) of proviso to Section 138 of the Negotiable Instruments Act also not stipulates a signed notice in writing. What is stated in the proviso is** _**“giving a notice in writing” and not “by giving a notice in writing with signature.”**_ **For this simple reason, the finding of the learned Magistrate that Ext.P5 notice issued by the complainant is defective, cannot be accepted.** **9. Exhibit D1 is a notice sent by a lawyer. The same was accepted by the accused. There was no reply from the side of the accused to Ext. D1 notice. In such** CRL.APPEAL NO.2031 OF 2005 6 **circumstances, I think, the accused cannot take a stand in the trial that, Ext.D1 is a defective notice and hence he is entitled acquittal. Of course, an accused can refuse to reply to a defective notice. But in this case, a perusal of Ext.D1 notice, it is clear that, it makes a demand for the payment of the amount of money. In such circumstances, it cannot be said that Ext.D1 is a defective notice.** **10. There are several decisions of this Court and Apex Court to strengthen the above findings. In Central Bank of India v. M/s Saxons Farms & Ors. [1999(3) KLT 484], the Apex Court observed that there is no form of notice prescribed under the Negotiable Instruments Act. The relevant portion of the above judgment is extracted hereunder:** _**“7. Though, no form of notice is prescribed in the above Clause(b) the requirement is that notice shall be given in writing within fifteen days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque had to be made.**_ CRL.APPEAL NO.2031 OF 2005 7 _**8. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect honest drawer. Service of notice of demand in Clause (b) of the proviso to S.138 is a condition precedent for filing a complaint under S.138 of the Act. ………”**_ **11. As held by the Apex Court, the requirement of giving notice to the drawer of the cheque is to enable him to avoid prosecution under Section 138 of the Negotiable Instruments Act. In B. Surendra Das v. State of Kerala [2019(2) KLT 895], this Court held like this:** _**“It is well settled principle of law that the notice has to be read as a whole. A notice must be construed not with a desire to find fault in it which would render it defective. It must not be read in a hyper technical manner. It must be construed strictly but in a sensible manner.”**_ **12. In the light of the above observations of this Court and the Apex Court, I think, the omission on the part of a lawyer to put his signature in the notice issued under Clause (b) of proviso to Section 138 of** CRL.APPEAL NO.2031 OF 2005 8 **the Negotiable Instruments Act, cannot be treated as defective notice. That is not a reason to acquit an accused in a prosecution under Section 138 of the Negotiable Instruments Act, especially when the Section does not stipulate that, a signed notice in writing is necessary for initiating a prosecution under Section 138 of the Negotiable Instruments Act.** **13. The defective notice is the main reason for acquitting the accused in this case. In this case, even though notice was issued by this Court to the accused, the accused refused to appear before this Court. Since the offence involved in this case is under Section 138 of the Negotiable Instruments Act and if the accused is intending to settle the issue, I think, an opportunity is to be given to him. For that purpose, this case can be remanded to the trial court. But I make it clear that no de nova trial is necessary in this case. If the accused wants to settle the matter with the complainant, the trial court should give him an opportunity. Otherwise, the learned Magistrate should allow the complainant and the accused to adduce any** CRL.APPEAL NO.2031 OF 2005 9 **further evidence, if they wanted to adduce. After giving an opportunity to adduce evidence to both sides, the learned Magistrate should hear the parties and pass appropriate orders in accordance to law, in the light of the findings in this judgment. I make it clear that, I consider only the question whether Exhibit P5 (D1) is a defective notice or not. If any other contention is there to the accused or complainant, the same can be raised before the trial court.** **Hence, this appeal is allowed. The order dated 31.8.2005 in C.C. No.19 of 2005 on the file of the Judicial First Class Magistrate-1, Harippad is set aside. The case is remanded to the trial court. The trial court will dispose of the same in accordance with** **the law and as mentioned in this judgment. Since this is a case registered in 2005, the learned Magistrate will take every endeavour to dispose of the same at the earliest.** ## **Sd/-** ## **P.V.KUNHIKRISHNAN, JUDGE** ## **pkk** CRL.APPEAL NO.2031 OF 2005 10