IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941
## CRL.A.No.2264 of 2006
CC 113/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, THODUPUZHA DATED 19-10-2004
CRL.A NO. 352/2004 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC)-II, THODUPUZHA
## APPELLANT/RESPONDENT/COMPLAINANT:
P.S.RADHAKRISHNAN @ UNNI, S/O.SANKARAN NAIR,, POTHANKUNNIL VEETIL, KANJIRAMATTOM KARA,, THODUPUZHA VILLAGE, THODUPUZHA TALUK.
BY ADV. SRI.C.C.ABRAHAM
## RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 SUNNY MATHEW, S/O. MATHEW, PUTHIYEDATHU VEETIL,, THODUPUZHA VILLAGE, THODUPUZHA TALUK.
2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.
BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS
SRI.K.B.RAMANAND, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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## **JUDGMENT**
The appellant is the complainant and the first respondent is the accused in C.C. No. 113 of 2004 on the file of the Judicial First Class Magistrate-I, Thodupuzha for an offence punishable under Section 138 of the Negotiable Instruments Act.
2. The case of the prosecution is as follows:
3. On 11.09.2003, the accused borrowed an amount of Rs.2,50,000/- from the complainant on a promise to repay the same. When the complainant demanded back the said amount from the accused on 19.11.2003, he issued a cheque bearing No.138199 drawn on the South Indian Bank, Thodupuzha Branch. When the cheque was presented for collection through State Bank of Travancore, Muttom Branch, the same was returned with an endorsement 'funds insufficient'. A lawyer notice was sent on 03.12.2003. Thereafter, on 30.12.2003, the complainant sent another notice to the accused in his new address. The notice was returned 'unclaimed'.
4. The accused when questioned under Section 313 Cr.P.C, pleaded not guilty to the charges levelled against him. The complainant was examined as PW1 and Exts.P1 to P9 were marked. On the side of the defence, DW1 was examined.
5. The learned Magistrate, after trial, as per judgment dated 19.10.2004, found the appellant guilty of the offence and convicted and
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sentenced him to undergo simple imprisonment for one year and to pay the cheque amount i.e., Rs.2,50,000/- as compensation to PW1 under Section 357(3) Cr.P.C and in default to pay the fine, to undergo simple imprisonment for six months. Aggrieved by the same, an appeal has been filed before the Additional District & Sessions Court, Adhoc-II, Thodupuzha. The learned Sessions Judge, as per judgment dated 30.12.2005 allowed the appeal and acquitted the accused under Section 386(b)(1) of Cr.P.C. Hence, this appeal has been filed by the complainant.
6. The appeal has been preferred from the appellate judgment in Crl. Appeal No.352 of 2004 dated 30[th] December 2005. The Judicial First Class Magistrate Court-I, Thodupuzha has conducted trial in this case and ultimately, convicted the accused and sentenced him to undergo simple imprisonment for one year and to pay Rs.2,50,000/- as compensation to DW1 under Section 357(3) of Cr.P.C and in default to pay compensation, to undergo simple imprisonment for six months. The appellate Court has acquitted the accused by setting aside the judgment of the lower Court below on a finding that the complaint was filed beyond the period of limitation. The
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Appellate Court has held that the appellant cannot send more than one notice to the respondent/accused and from the date of first notice, the cause of action arises. It was held that Ext.P4 notice was issued to the respondent/accused in his correct address and the respondent entered appearance before the court below and filed vakalath in the above address and the same house name was written by the respondent in the vakalath as stated in the complaint.
7. After getting Ext.P1 cheque dishonoured, Ext.P4 notice was sent to the respondent in his correct address. So, according to the appellate Court, the cause of action arises as soon as Ext.P1 notice was sent to the respondent in his correct address. It was also held that notice was duly sent in the correct address. It is immaterial that whether the accused/respondent was available in that address, when the letter reached in his correct address. In this connection, I have gone through the documents. When Ext.P6 letter which was sent in the permanent address of the accused was redirected to Coimbatore. It has also come out from the evidence that the appellant has left Coimbatore just before the arrival of the registered letter and such letter was returned with an endorsement
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'addressee left from Coimbatore without giving any instructions to the Post Office'. So, it is evident from Exts.P4 and P6 that, Ext.P4 notice was actually sent to the appellant in his correct address. Ext.P6 is a postal cover which was returned from Coimbatore from 08.12.2003 on the ground that addressee left without any instructions. According to the appellate court, the date of such intimation is taken as the date of service of notice on the respondent and therefore, the complaint ought to have filed before 23.01.2004. But, the complaint was filed only on 13.02.2004 taking the date on which the complainant received Ext.P9 as the date of service of notice on the accused. Accordingly, the appellate court, holding that all the mandatory requirements as contemplated under Section 138 of the Negotiable Instrument Act are strictly complied with, and that the complaint was filed before court after the prescribed period of limitation and therefore, the offence under Section 138 of the Negotiable Instrument Act does not lie, set aside the order of conviction and sentence passed by the court below and acquitted the accused under Section 386 (b) (1) of Cr.P.C.
8. The appellant has challenged the findings entered by the
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appellate court relying on the decision in **Dalmia Cement Ltd. v. Galaxy Traders and Agencies** [2001(1) KLT 528 (SC), wherein the Supreme Court held that the context envisaged in Section 138 of the Negotiable Instrument Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words used in clause (b) of the proviso to Section 138 of the Negotiable Instrument Act show that the payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to' make a demand' by giving notice. It is only the mode of making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice.
9. In order to attract the offences under Section 138 of the Negotiable Instrument Act, certain conditions are to be complied with. One of the conditions is that, after return of the cheque, notice must be sent to the accused intimating about the fact of dishonour of the cheque and demanding payment of money within one month from the date of receipt of information from the Bank regarding the dishonour of cheque. Then, a fifteen days' time must
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be given to the accused to pay off the debt covered by the cheque and if the accused does not pay the amount within fifteen days, complaint has to be filed before Court within one month from the date of expiry of fifteen days' period. So, it is definite that immediately after the dishonour of the cheque, the complainant has to send a notice demanding the accused to pay the amount within one month from the date of information from the Bank regarding the dishonour of cheque. Then a fifteen days time has to be given after receipt of the notice to pay the amount and after expiry of fifteen days, the complainant has to file a complaint within one month from the date of expiry of fifteen days. So, the Court is bound to look into whether the statutory period has been complied with by the appellant. Here, immediately after the dishonour of cheque, a notice was sent to the respondent intimating him to repay the amount and it is a well settled law that if the notice is sent in the correct address of the accused, it would not be treated as duly served to the accused. So, the date which was affixed on the cover is to be treated as the date of service of notice. Here the appellant has sent a notice immediately after dishonour of cheque and the cause of action arose as and when
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Ext.P4 notice was sent to the respondent. Ext.P6 is the acknowledgment on the postal cover and the same is treated as the the service of notice. Ext.P6 cover would state that it was returned on 08.12.2003, which would be taken as the date of service of the notice. Then the respondent had to repay the amount within 15 days i.e., on 23.12.2003. If that be so, the appellant ought to have filed the complaint on or before 23.01.2004; but he has filed the complaint only on 13.02.2004. He has not filed any application to condone the delay in filing the complaint. Under these circumstances, I find that the findings entered by the court below that the complaint was filed not within the period of limitation is found to be correct. I do not find any ground to interfere with the judgment of the appellate court and it is only to be confirmed.
In the result, this appeal is dismissed.
sd/- **ANNIE JOHN, JUDGE.**
_Rv/lk_
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