Nalini Mohanan K.M. v. State of Kerala and Ansamma Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **Crl.MC.No.4254 OF 2019(B)** **AGAINST THE ORDER/JUDGMENT IN ST 798/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, THALIPARAMBA** ## **PETITIONER/ACCUSED:** **NALINI MOHANAN K.M, AGED 65 YEARS W/O.KUNNUMPURATH MOHANAN, KUNNUMPURATH HOUSE, PLACHIKKARA P.O., BHEEMANADI-VIA, HOSDURG TALUK, KASARAGOD DISTRICT, PIN- 671314.** **BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SRI.P.T.ABHILASH** ## **RESPONDENTS/S:** **1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI- 682031. 2 ANSAMMA THOMAS, AGED 52 YEARS W/O.THOMAS P.J., PULLATTU HOUSE, KARUVANCHAL P.O., ALAKODE-VIA, VELLAD AMSOM, KANNUR DISTRICT, PIN- 670571.** **R1 BY ADV.SRI C.N.PRABHAKARAN R2 BY ADV. SRI.V.A.SATHEESH R2 BY ADV. SRI.V.T.MADHAVANUNNI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.11.2019, THE COURT ON 08.01.2020 PASSED THE FOLLOWING:** **Crl.MC.No.4254 OF 2019(B)** **2** ## **“C.R”** ## **R. NARAYANA PISHARADI, J** ## **----------** ----------------------------------- ## **Crl.M.C. No. 4254 of 2019** --------------------------------------------Dated this the 8[th] day of January, 2020 ## **O R D E R** The petitioner is the accused in the case S.T No. 798/2019 on the file of the Court of the Judicial First Class Magistrate-II, Taliparamba. 2. The aforesaid case is instituted on the basis of the complaint (Annexure-A1) filed against the petitioner by the second respondent (hereinafter referred to as 'the complainant') for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. The cheque produced by the complainant along with Annexure-A1 complaint was bearing the date 26.02.2019 and the number 10145489. The amount of this cheque is Rs.8,10,000/-. The averments in Annexure-A1 complaint relate to dishonour of this cheque which was allegedly issued by the petitioner to the complainant. 4. Annexure-A3 is the copy of the lawyer notice dated **Crl.MC.No.4254 OF 2019(B)** **3** 08.03.2019 sent by the complainant to the petitioner demanding payment of the amount of the cheque. The number of the cheque for Rs.8,10,000/- shown in Annexure-A3 notice is 10145482. 5. This petition is filed under Section 482 Cr.P.C by the accused for quashing the proceedings initiated against her on the basis of Annexure-A1 complaint, on the ground that the complaint filed without issuing proper statutory notice is not maintainable. In other words, the plea of the petitioner is that Annexure-A3 notice sent to her by the complainant is not valid for the reason that the number of the cheque shown in that notice is not correct. 6. Heard the learned counsel for the petitioner and also the second respondent. 7. As per the averments in Annexure-A1 complaint, the complainant and her husband had sold their properties to Jinu Mon and Manu Mon, the children of the petitioner and her husband, as per the sale deeds executed on 09.06.2017 and 07.07.2017. It is alleged in the complaint that the cheque for Rs.8,10,000/- was one of the five cheques issued by the petitioner towards the sale consideration which was due to the complainant. 8. Admittedly, the cheque which was produced along with Annexure-A1 complaint was for Rs.8,10,000/- bearing the number **Crl.MC.No.4254 OF 2019(B)** **4** 10145489 and the date 26.02.2019. The averment in the complaint is also that the number of the cheque for Rs.8,10,000/-, which was issued by the petitioner to the complainant, is 10145489. 9. Admittedly, the number of the cheque for Rs.8,10,000/- is shown in Annexure-A3 as 10145482 and not 10145489. 10. Clause (b) of the proviso to Section 138 of the Act mandates that the payee of the cheque has to make a demand for payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque, within thirty days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. 11. In the instant case, the complainant had received the intimation regarding the dishonour of the cheque from the bank on 06.03.2019. Annexure-A3 notice was sent by the complainant to the petitioner on 08.03.2019, within the prescribed period. 12. However, the complainant had subsequently sent another notice to the petitioner stating that a mistake had occurred in showing the number of the cheque in Annexure-A3 notice and that the correct number of the cheque is 10145489. Annexure-A4 is the copy of this notice. It bears no date. Learned counsel for the second respondent/complainant has not raised any plea that Annexure-A4 **Crl.MC.No.4254 OF 2019(B)** **5** notice was sent by the complainant to the petitioner within thirty days from the date of receiving intimation from the bank regarding the dishonour of the cheque. 13. Therefore, the issue boils down to whether the mistake occurred in stating the number of the cheque in Annexure-A3 notice would make the notice invalid. 14. Annexure-A3 notice contains the details of the sale deeds executed by the complainant and her husband in favour of the children of the petitioner. It also contains the details of the five cheques issued by the petitioner to the complainant towards sale consideration. 15. It is stated in Annexure-A3 notice that the cheque bearing the number 10145489, which was issued by the petitioner to the complainant, was for Rs.1,39,000/- and it was encashed by the complainant. It is further stated in Annexure-A3 that the cheque bearing the number 10145482 was for Rs.8,10,000/-. Therefore, it is evident that it was only a clerical mistake that occurred in stating the number of the cheque in the notice. 16. It is pertinent here to note that the petitioner has got no plea that she had issued any cheque for Rs.1,39,000/- to the complainant which bears the number 10145489. **Crl.MC.No.4254 OF 2019(B)** **6** 17. In the last paragraph of Annexure-A3 notice, there is a specific demand made by the complainant to the petitioner to pay Rs.8,10,000/- within fifteen days from the date of receipt of the notice. 18. A demand for payment of the amount of the cheque, by giving a notice in writing, is _sine qua non_ for filing a complaint for the offence under Section 138 of the Act. The emphasis given in the provision contained in Clause (b) of the proviso to Section 138 of the Act is on the demand to be made for payment of the amount of the cheque. The statute does not provide that the number of the cheque shall be mentioned in the notice. What is required is a demand, by giving a notice in writing to the drawer of the cheque, for payment of the amount covered by the cheque. The statutory provision indicates in unmistakable terms as to what the notice should contain. 19. The object of sending a notice demanding payment of the amount of the cheque is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. No form of notice is prescribed under Clause (b) of the proviso to Section 138 of the Act (See **Central Bank of India v. M/s Saxons Farms : AIR 1999 SC 3607** ). 20. The requirement of giving notice to the drawer of the cheque **Crl.MC.No.4254 OF 2019(B)** **7** is to enable him to avoid a prosecution under Section 138 of the Act. 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 hypertechnical manner. It must be construed strictly but in a sensible manner (See **Surendra Das v. State of Kerala : 2019 (3) KHC 105** ## **: 2019 (2) KLT 895** ). 21. In **Viswanathan v. Ramachandran Nair : 1996 (2) KLT 449** , it has been held that, when there is only one transaction between the parties and when there is only one transaction of issuance of cheque between the parties, a mistake in the number could not mislead the drawer of the cheque and such mistake does not render the notice invalid. ## 22. In **Shihahbuddin Ahammad v. Krishnaraj : 2016 (2)** **KHC 463: 2016 (2) KLT 473** , it has been held that when the cheque number is not mentioned in the notice or when there is a mistake in mentioning the number of the cheque in the notice, the accused cannot claim that the notice is bad or not in proper form to invalidate the cause of action. 23. Learned counsel for the petitioner contended that, when there are several transactions between the complainant and the **Crl.MC.No.4254 OF 2019(B)** **8** accused and when the accused had issued several cheques to the complainant, non-mentioning of the number of the cheque or mentioning a wrong number of the cheque in the statutory notice is fatal to the complaint. Learned counsel for the petitioner relied upon the decision of the Karnataka High Court in **Nityanand v. Jamuna Prakash: 2002 (1) Crimes 415** in support of this contention. 24. The decision in **Nityanand** (supra) has no application to the facts of the present case. In that case the Karnataka High Court has stated as follows: _“Whether the non-mentioning of cheque number in the notice of demand issued in pursuance of Clause (b) of the proviso to Section 138 of the N.I. Act would be fatal to the very case instituted subsequently, would depend upon the facts and circumstances of each case. ......... What needs to be mentioned in such a notice cannot be viewed in a hypertechnical manner. The purpose of giving the notice is to bring it to the notice of the drawer of the cheque that the cheque he has issued has been dishonoured and to put him on guard with regard to making of payment covered by that cheque within fifteen days so as to avoid prosecution. Viewed in - this context, whether or not non mentioning of cheque number when all other necessary particulars had been given in the notice, would be fatal to the_ **Crl.MC.No.4254 OF 2019(B)** **9** _case of the complainant, should depend upon the facts and circumstances of each case.”_ (emphasis supplied). 25. Learned counsel for the petitioner would rely upon the following passage in **Nityanand** (supra) in support of his contention. _“For example, if there is only one incidence of issuing a cheque between the parties, then, if all other necessary particulars are furnished in the notice, the mere fact that cheque number is not mentioned would not be fatal. Even in a case like the present one wherein the accused totally denies having had any transaction with the complainant, and denies having issued the cheques concerned at all, it hardly matters whether cheque numbers are mentioned or not. But, there could be a case wherein the drawer of a particular cheque that has been dishonoured, would also have issued several other cheques in favour of the complainant concerned. In that event, if the cheque number is not mentioned in the notice of demand, then, the accused drawer would not be in a position to know as to in respect of which particular cheque among several cheques that he has issued that he should make payment within fifteen days to avoid prosecution. It is in such circumstances that mentioning of cheque number would be essential”._ 26. In the present case, there was only one transaction **Crl.MC.No.4254 OF 2019(B)** **10** between the complainant and the petitioner. The transaction between them was the sale of the property of the complainant and her husband to the children of the petitioner. The fact that four sale deeds were executed on two dates does not mean that there were several transactions between them. 27. Annexure-A3 notice sent by the complainant to the petitioner contains all relevant details of the sale deeds. The notice also contains particulars of all the five cheques allegedly issued by the petitioner to the complainant. Out of the five cheques, alleged to have been issued by the petitioner to the complainant, only one cheque was for the amount of Rs.8,10,000/-. There was no other cheque issued by the petitioner for the same amount. Therefore, the notice could not have created any confusion in the mind of the petitioner as to the amount of the cheque which was demanded in it. 28. In the aforesaid circumstances, I am of the view that the mistake in Annexure-A3 notice in mentioning the number of the cheque for the amount of Rs.8,10,000/- does not make the notice defective or invalid. Annexure-A1 complaint is not liable to be quashed for want of a valid notice. 29. A feeble plea is raised in the petition that the cheque does not bear the signature of the petitioner. It is a matter of evidence. **Crl.MC.No.4254 OF 2019(B)** **11** Such factual disputes cannot be resolved in a petition filed under Section 482 Cr.P.C. ## Consequently, the petition is dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.MC.No.4254 OF 2019(B)** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE STC NO.798/2019, PENDING ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT II, TALIPARAMBA.** **ANNEXURE A2 TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER.** **ANNEXURE A3 TRUE COPY OF THE NOTICE DATED 08.03.2019 ISSUED TO THE PETITIONER ON BEHALF OF THE 2ND RESPONDENT.** **ANNEXURE A4 TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER ON BEHALF OF THE 2ND RESPONDENT.** **ANNEXURE A5 TRUE PHOTOCOPY OF THE POSTAL ENVELOP IN WHICH ANNEXURE A4 WAS SENT TO THE PETITIONER.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**