Siby Joseph v. State of Kerala and S. Seethalakshmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933** **Crl.Rev.Pet.No. 2505 of 2011()** **------------------------------------------** **CRA.84/2010 of ADDL. SESSIONS COURT, KOLLAM ST.1735/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM** **....................** ## **REVN. PETITIONER(S): APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **SIBY JOSEPH, PROPRIETOR, PUTHENPARAMBIL TOURIST SERVICE, C/O.SIBY FLOWER STORES, KAVALA, M.C.ROAD, CHANGANACHERRY.** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT:** **-------------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. S.SEETHALAKSHMI, W/O.R.SREEDHARA REDDIAR 18/443, SEETHA SRI HOUSE, PUTHENANGADY ROAD, KOTTAYAM, PIN-686 001, REPRESENTED BY HER POWER OF ATTORNEY HOLDER R.SREEDHARA REDDIAR.** ## **R1 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON 11/11/2011 PASSED THE FOLLOWING:** **tss** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NO.2505 OF 2011 ----------------------------------Dated this the 11[th] day of November, 2011** ## **O R D E R** The revision is by the accused in a cheque case, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'Act', concurrently by the two courts below. Sentence imposed against the accused as modified by the Sessions judge in appeal, is imprisonment till the rising of the court and payment of compensation of Rs.39,710/to the complainant with default term of simple imprisonment for two months. Feeling aggrieved, the accused has preferred this revision. 2. The main ground of challenge raised by the counsel for the revision petitioner/accused to assail his conviction is that the very cognizance taken over the complaint, in which, dishonour of four cheques, for a total sum of Rs.39,710/-, was the basis, was wrong under law. Since the dishonour of each cheque **Crl.R.P.No.2505/2011** **2** constituted a separate offence, according to the counsel, even by resort to sub section (1) of Section 219 of the Code of Criminal Procedure, for short, the 'Code', only offences relating to dishonour of three cheques could be joined in one complaint against the accused. Though the offences imputed in relation to the dishonored cheques, all four of them, are in common falling under Section 138 of the Act, according to the counsel, only as against three of them, the accused could have been charged in the same complaint and proceeded upon in one trial. Since trial was conducted over the four dishonoured cheques on a single complaint, the conviction entered thereunder against the accused is vitiated, is the further submission of the counsel to urge for setting aside such conviction and sentence imposed against him. 3. After going through the judgments rendered by the Magistrate and also the Sessions Judge, I find, no merit in the challenge raised by the counsel. Four cheques with different dates drawn for sums of Rs.9,935/-, Rs.9,925/-, Rs.9,850/- and Rs.10,000/- issued by the accused were presented by the **Crl.R.P.No.2505/2011** **3** complainant on the same day. Those cheques were dishonoured and returned under Exts.P5 to P8 memos issued by the Bank. On such dishonour, complainant issued a statutory notice intimating the dishonour of all the four cheques demanding the sums thereunder. Notice was acknowledged but not responded with payment or reply. Complaint filed in respect of the four dishonour cheques has led to the conviction of the accused, which was affirmed by the Sessions Judge turning down his appeal. Challenge raised by the counsel that only the dishonour of three cheques could have been joined together as each of them constitute the commission of a separate offence, adverting to Sections 218 and 219 (1) of the Code, is not correct. In the present case, though all the four cheques were presentable on different dates, within the period provided for presentation, all of them were presented on the same date. The cheques getting dishonoured on such presentation, a common notice was issued by the complainant intimating the dishonour of the instrument and demanding the sums covered thereunder. There is no challenge against that notice issued as to any prejudice having been caused to the drawer on account of any vagueness or other **Crl.R.P.No.2505/2011** **4** defect as regards the particulars of the cheques, the sums covered thereunder, the presentation and dishonour etc. When that be the case, though four cheques were involved in the complaint as it had been presented on the same day and single notice was issued in relation to such cheques on dishonour, it constituted a single transaction. The filing of a complaint in respect of the four dishonoured cheques issued by the petitioner is not in any way interdicted by the rider placed under Section 219 (1) of the Code as to the joining of not more than three offences of the same kind and of trying them at one trial. This Court in **Metropoli Over Seas Ltd. v. Kuttiyanickal Rubbers (P) Ltd. (2003 (3) KLT SN 42 (Case No.58))** considering an identical situation in which dishonour of six cheques after issuing a single notice was proceeded on one complaint held that it is maintainable and Section 219 (1) of the Code does not in any way bar the entertaining of such a complaint. Similar view has been expressed by this Court in **Mohammed v. State of Kerala (2004 (3) KLT 330)** in which six dishonoured cheques after issuing a single notice proceeded on a single complaint, holding **Crl.R.P.No.2505/2011** **5** that the offence in respect of such six cheques must be held to be part of the same transaction and as such, joint trial of such offences is permissible as enjoined by Section 220 of the Code. In the present case, the accused has been prosecuted on four dishonoured cheques issued by him to the complainant after issuing a statutory notice for all such dishonoured cheques together. As already pointed out, there is no challenge against the notice so issued and when that be so, the offences covered by all the four dishonoured cheques formed part of a single transaction on which a single complaint from the payee or holder in due course is perfectly entertainable. As no other challenge is canvassed for, the conviction and sentence imposed against the accused are only to be upheld. 4. Affirming the conviction and sentence, petitioner/accused is directed to appear before the Magistrate on 22.12.2011 to serve out the imprisonment till the rising of the court and to report the payment of the compensation. The Magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance to enable him to **Crl.R.P.No.2505/2011** **6** pay the sum within the above period. In default of his appearance and non-payment of the compensation, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of with the above directions. **S.S.SATHEESACHANDRAN JUDGE** prp **Crl.R.P.No.2505/2011 7**