S. R. Abhilash v. Geetha S. Nair and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar, J.
Judgment Date: 2018-02-23
Court Decision / Holding: Appeal allowed. The trial court’s acquittal is set aside; the accused is convicted under Section 138 NI Act. The sentence is imprisonment till rising of the court and payment of Rs.75,000 as compensation under Section 357(3) Cr.P.C., with a default one-month imprisonment.
Final Disposition: Crl.Appeal allowed; conviction under Section 138 NI Act and sentence as stated above.

Parties to the Case

Appellants / Petitioners

S. R. Abhilash

Respondents

Geetha S. Nair
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Gopan

Counsels for Respondents

• Sri Blaze K. Jose
• Public Prosecutor Sri E. C. Bineesh

Case Synopsis & Summary

The High Court of Kerala, in Crl.A. No. 461 of 2007, heard an appeal against an order of acquittal under Section 138 of the Negotiable Instruments Act. The complainant-appellant, S. Abhilash, alleged that the accused Geetha S. Nair borrowed Rs. 75,000 and issued a cheque (Ext. P1) which bounced on presentation for encashment. The trial court held the cheque to have been executed under Section 138 NI Act but acquitted the accused on the ground that the demand notice was time-barred, relying on the date of Ext. P3 memo (21.12.2002) as the starting point. The High Court evaluated the evidence and concluded that the notice issued on 6.1.2003 was within the period allowed by Section 138 NI Act, applying the principle that the period of fifteen days must be counted from the date the complainant receives information of dishonour from the bank, as clarified in Munoth Investments Ltd. v. Puttukola Properties Ltd. (2001) 6 SCC 582. The appellate court found that even if the information reached the complainant on 23.12.2002, or 4.1.2003, the notice remained timely. The court set aside the acquittal, convicted the accused under Section 138 NI Act, and imposed a sentence of imprisonment till rising of the court with Rs.75,000 as compensation under Section 357(3) Cr.P.C., plus a default one-month imprisonment. The appeal thus succeeded, reversing the trial court’s verdict.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 255(1) Cr.P.C.Section 357(3) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the fifteen-day period for the notice under Section 138 NI Act must be counted from the date the complainant receives information of the dishonour from the bank, per Munoth Investments (2001) 6 SCC 582. The memo date (Ext. P3) should not be treated as the receipt date; consequently, the notice dated 6.1.2003 is timely even if the information was received on 23.12.2002 or 4.1.2003. The prosecution proved Ext. P1 and the notice compliance beyond reasonable doubt, warranting conviction rather than acquittal.

Contentions of Respondents

The respondents submit that the timing of the notice should be computed from the date of the bank’s memo (Ext. P3) dated 21.12.2002, which would render the notice beyond the fifteen-day window if computed strictly, thus time-barred. They rely on the lower court’s reasoning that treated Ext. P3 as the receipt date and contend that the acquittal was correctly entered. They argue that any delay in receipt cannot save a defective notice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Munoth Investments Ltd. v. Puttukola Properties Ltd. and Another	(2001) 6 SCC 582	Positive	Apex Court held that the fifteen days are to be counted from the date of receipt of information regarding the return of the cheque as unpaid, not from the memo date, guiding the Kerala High Court’s interpretation in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939** **CRL.A.No. 461 of 2007** ## **Crl.L.P.NO.76/2007 of HIGH COURT OF KERALA DATED 09-02-2007** **C.C.NO.31/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT- IV (PRINCIPAL MUNSIFF), NEYYATTINKARA DATED 11-01-2007** ## **APPELLANT/COMPLAINANT** **-----------------------------------------** ## **S.R.ABHILASH, S/O.RAM MOHAN, T.C.17/1430, 'SARAS', CHENKALLOOR LANE, POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DIST.** **BY ADV.SRI.R.GOPAN** ## **RESPONDENT/ACCUSED AND STATE:** **-------------------------------------------------------** **1. GEETHA S NAIR, D/O.SAVITHRY AMMA, RESIDING AT GEETHANJALI, T.C.NO.28/869, PUNNAPURAM KUNCHUVEEDU LANE, THIRUVANANTHAPURAM DIST.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.BLAZE K.JOSE R2 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Bb** **B.SUDHEENDRA KUMAR, J. ----------------------------------------Crl.Appeal No.461 of 2007 ------------------------------------------Dated this the 23[rd] day of February, 2018** ## **J U D G M E N T** The appellant is the complainant in C.C.No.31 of 2005 on the files of the court below. 2. The appellant filed a complaint against the first respondent herein before the court below alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I.Act' for short). After the trial, the court below acquitted the first respondent under Section 255(1) Cr.P.C. Aggrieved by the judgment and order of acquittal, this appeal has been filed after obtaining Special Leave from this Court. 3. The case of the appellant is that, the accused borrowed an amount of Rs.75,000/- from the appellant and towards the discharge of the said liability, the accused issued Ext.P1 cheque in favour of the appellant. Crl.Appeal No.461 of 2007 : 2 : The appellant stated that Ext.P1 cheque was dishonoured due to insufficiency of funds when presented for encashment. The appellant received intimation from the bank with regard to the dishonour of the cheque only on 4.1.2003. The statutory notice was issued on 6.1.2003. 4. The court below, after evaluating the evidence of PW1, found that Ext.P1 cheque was executed by the accused as contemplated under Section 138 of the N.I. Act. However, the court below found that since Ext.P3 memo was dated 21.12.2002, the notice issued was time barred. Ext.P3 is the memo sent by the Dhanalakshmi Bank, Manacaud to the Canara Bank, Trivandrum on 21.12.2002. Ext.P8 would show that the same was received by Canara Bank, Trivandrum on the same day. The Canara Bank, Trivandrum on the same day sent Ext.P8 to the Canara Bank, Neyyattinkara, by Registered Post. Therefore, it is clear that the intimation could be received by the appellant only after the receipt of Ext.P8 by the Neyyattinkara branch. The appellant contended in the complaint as well as in the evidence that the Crl.Appeal No.461 of 2007 : 3 : intimation was received by the appellant only on 4.1.2003. The appellant received Ext.P7 along with Exts.P8 and P3 from the Canara Bank, Neyyattinkara. The intimation sent on 21.12.2002 by the Canara Bank, Trivandrum to the Canara Bank, Neyyattinkara could be received by the Canara Bank, Neyyattinkara only on or after 23.12.2002 as 22.12.2002 was a Sunday. Therefore, the intimation could be given to the appellant only on or after 23.12.2002. Even if it is assumed that the information was received by the appellant on 23.12.2002 and not on 4.1.2003, the notice sent on 6.1.2003 was within the period of limitation. Section 138 of the N.I. Act provided that the demand for the payment of the cheque amount must be made by giving a notice in writing within a period of fifteen days till the amendment by Act 55 of 2002, as per which, the period had been extended by thirty days w.e.f. 6.2.2003. However, during the relevant period, the notice should have been issued within fifteen days of receipt of information by him from the Bank. The crucial date is the date of information and not the date shown in the Crl.Appeal No.461 of 2007 : 4 : memo of the bank. The Apex Court in Munoth Investments Ltd. v. Puttukola Properties Ltd. and Another [(2001) 6 SCC 582] held that the fifteen days are to be counted from the date of receipt of information regarding the return of the cheque as unpaid. However, the court below had erroneously taken the date of Ext.P3 memo as the date of receipt of information by the appellant even without considering the aspects discussed above. In view of the above reason, the finding by the trial court that the demand notice was time barred, cannot be sustained. Even though the accused had taken a contention that the accused did not receive the notice, the court below correctly found that the said contention of the accused could not be sustained. 5. I have gone through the evidence of PW1 and I am fully convinced that PW1 had clearly explained as to how Ext.P1 cheque happened to be in possession of PW1. The contention of the accused was that the amount was actually given to one Santhosh by the complainant towards the cost of production of a serial. Crl.Appeal No.461 of 2007 : 5 : During her examination under Section 313 Cr.P.C. also, the accused had taken a contention that the amount was given by the complainant to one Santhosh and at that time, the accused had given a cheque to the complainant for and on behalf of the said Santhosh. She also lodged a complaint before the Poojappura police station as the cheque was not given back by the complainant even after the discharge of the debt. However, apart from the above said contentions, there is absolutely no material before the court to substantiate the same by the yardstick of preponderance of probabilities and possibilities. It is true that it is not necessary that the accused must adduce evidence to prove her case. It is sufficient if the accused is able to prove her case by the yardstick of preponderance of probabilities and possibilities from the materials produced by the prosecution itself. However, in this case, there is absolutely no material before the court to probabilise the above said contention of the accused. Having gone through the relevant inputs, I am satisfied that the evidence of PW1 proved that the accused executed Crl.Appeal No.461 of 2007 : 6 : Ext.P1 cheque as contemplated under Section 138 of the N.I. Act. The court below acquitted the accused only on the ground that the notice was time barred. I have already found that the notice was issued within the period stipulated by the statute. Having gone through the relevant inputs, I am satisfied that the complainant could succeed in establishing that the accused committed the offence under Section 138 of the N.I. Act. Therefore, the order of acquittal passed by the court below cannot be sustained. Consequently, I set aside the same. I also find the accused guilty for the offence under Section 138 of the N.I. Act. Therefore, she is convicted thereunder. The learned counsel for the accused has requested for leniency in the matter of sentence stating that the accused is a woman, who is presently aged 55 years, having no source of income. The amount covered by Ext.P1 cheque is Rs.75,000/-. Considering the facts and circumstances of the case, including the amount covered by Ext.P1 cheque, I am of the view that the accused can be sentenced to imprisonment till the rising of the court and a Crl.Appeal No.461 of 2007 : 7 : compensation of Rs.75,000/- to the complainant under Section 357(3) of Cr.P.C. with a default clause for Simple Imprisonment for one month, to meet the ends of justice. It is ordered accordingly. Sd/- **B.SUDHEENDRA KUMAR JUDGE.** Bb/24/2/2018 _[True copy]_ _P.A to Judge_