Sudevan S/o Late Madhavan v. Prema W/o Chamunny; The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **SATURDAY, THE 1ST DAY OF DECEMBER 2012/10TH AGRAHAYANA 1934** ## **CRL.A.No. 1750 of 2004 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN CRLP.638/2004 DATED 14-10-2004 CC.361/2003 of J.M.F.C.-I,PALAKKAD** ## **APPELLANT(S)/COMPLAINANT: ------------------------** **SUDEVAN S/O. LATE MADHAVAN, KOLLAMPALLATH, PALLATHERI AMSOM, ELAPPULLY PALAKKAD THALUK AND DISTRICT.** **BY ADVS.SRI.SAJAN VARGHEESE K.** **SRI.LIJU. M.P** ## **RESPONDENT(S)/ACCUSED/RESPONDENT/NON-PARTY:** **-------------------------------------------** **1. PREMA W/O. CHAMUNNY (TEA SHOP) KOZHALODE PARAMBU, PALLATHERI POST, ELAPPULLY PALAKKAD DISTRICT.** **2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.T.SHYAMKUMAR** **R2 BY PUBLIC PROSECUTOR SMT. JASMINE V.H.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. A. No: 1750 of 2004 -----------------------------------------Dated this the 1[st] day of December, 2012 ## **J U D G M E N T** Today also counsel for the respondent is absent. No representation. Head, the learned counsel appearing for the appellant. The complainant in a case filed under section 138 of N.I. Act is the appellant. The accused therein (1[st] respondent herein) was acquitted by the learned Magistrate under section 255(1) of Cr.P.C. The case of the complainant is that the 1[st] respondent had borrowed from him a sum of Rs.45,000/- on 1.4.2002 and to discharge that debt Ext.P1 cheque was issued, which on presentment was dishonoured on the ground of 'insufficiency of funds'. On receipt of the dishonour memo, statutory notice was sent on 12.9.2002. That notice was refused by the accused on 14.9.2002. The ## **Crl.A. No: 1750/2004** **-2-** amount covered by the cheque was not paid by the accused. Hence, complaint was filed by the appellant on 30.9.2002. 2. The learned Magistrate took the case on file. The accused appeared and contested the case. The complainant, as PW1, gave evidence regarding the transaction and issuance of Ext.P1 cheque by the accused and also regarding the sending of the notice. The accused admitted the signature and also the issuance of the cheque, but contended that Ext.P1 was not issued in relation to the transaction averred by him in the complaint. 3. The Accountant of the complainant was examined as DW1 and Ext.D1 ledger book was also marked. The contention raised by the accused was that this transaction was not mentioned in Ext.D1 ledger and so the amount covered by Ext.P1 was not payable. The other ground that was taken up by the accused is that the complaint was premature. According to the accused, the complainant had ## **Crl.A. No: 1750/2004** **-3-** one month time after the expiry of the period of 15 days, which is the period within which the accused can pay the amount covered by the cheque to avoid the prosecution. Since the complaint was filed on 30.9.2002, it should be held to be pre-mature and ill-conceived. The court below accepted the contention raised by the accused and thus he was acquitted. 4. The learned counsel for the complainant submits that the accused practically admitted execution of Ext.P1. It was also not disputed that there was financial transaction. The contention raised by the accused was that the complainant stood as mediator in relation to a dispute regarding the partition of an immovable property, and in connection with that a signed blank cheque was given to the complainant. Nobody was examined to say that there was a mediation and as to who handed over the signed blank cheque in the mediation as alleged by the accused. On the **Crl.A. No: 1750/2004** **-4-** other hand, the evidence given by PW1 as to the transaction is found to be well acceptable. The explanation offered by the accused as to how the cheque signed by him happened to reach the hands of the complainant is found unsatisfactory. On an evaluation of the evidence and totality of the circumstances, the case advanced by the complainant that Ext.P1 was issued by the accused to discharge a sum of Rs.45,000/- borrowed by him is more probable and reasonable, the learned counsel for the complainant submits. 5. The contention raised by the accused regarding the handing over of the blank signed cheque was rejected by the trial court also. As said earlier the accused was acquitted on the ground that the complaint was filed prematurely. The accused contended that 15 days' time for payment of the amount would start only when the complainant comes to know of the refusal of the notice or **-5-** ## **Crl.A. No: 1750/2004** when the unserved notice comes to the hands of the de facto complainant. But the learned counsel for the complainant/appellant submits that when the complainant comes to know of the refusal of the notice and if he reckons the actual date of refusal of the notice, it has to be held that within 15 days from that date the accused has to pay the amount to avoid the prosecution. If so, if a complaint is filed immediately after the expiry of 15 days it cannot be said that the complaint is pre-mature. Here, the statutory notice was sent on 12.09.2002. It was refused on 14.09.2002. That is the endorsement found on Ext.P5 – returned postal cover. It is true that if the complainant contends that he came to know of the factum of refusal of the notice only when the returned postal cover is received by him so as to compute 15 days time to pay off the amount covered by the cheque, the complainant can exclude that date and file the complaint within one month thereafter. ## **Crl.A. No: 1750/2004** **-6-** But the complainant need not wait till the last day to file the complaint. Once the cause of action to file the complaint arises then the accused cannot contend that the complainant had sufficient time to file the complaint and so he should not have hastily filed the complaint, it is argued by the learned counsel for the complainant. 6. In **Saketh India Ltd. v. India Securities Ltd. 1999 (1) KLJ 820** it was held that the period of one month for filing the complaint has to be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. 7. In was held by this court in **Gopalakrishnan v. Noorjahan 2011 (3) KLT SN 96** that knowledge of the sender about the date of receipt of notice by the drawer is very much material as regards accrual of the cause of action for making the complaint. ## **Crl.A. No: 1750/2004** **-7-** 8. The decision in **Krishnankutty Nair v. Ashokan 2005 (1) KLT 537** has also been relied upon to contend that the period of one month for filing the complaint has to be reckoned from the date immediately following the date on which the period of 15 days from the date of receipt of the notice by the drawer expired. 9. According to the learned counsel for the complainant though the complainant could have availed of the exclusion of the days namely, the days between the date of refusal and the date of return of the postal cover still, if the complainant has chosen to file the complaint immediately on the next day of the expiry of 15 days from the date of actual refusal of the notice by the accused, it cannot be said to be pre-mature. The notice sent on 12.9.2002 was refused on 14.09.2002. If 14.09.2002 is excluded, 15 days time would expire on 29.09.2002. If so, the complaint filed on 30.9.2002 is well within time, the **-8-** ## **Crl.A. No: 1750/2004** learned counsel submits. 10. As stated earlier, the complaint was filed on 30.9.2002. The evidence regarding transaction given by the complainant was accepted by the court below. The contention that since the transaction does not find a place in Ext.D1 the case of the complainant cannot be accepted, was rightly found against by the learned Magistrate, since the evidence would show that this was only a personal transaction and not the one relating to the commercial transaction, which alone was mentioned in Ext.D1. The accused could not rebut the presumption under section 139 of the N.I. Act. The accused did not offer to pay the amount when he appeared before the trial court on receipt of summons or even thereafter. As such, the conviction should follow. The cheque is for Rs.40,000/-. It was issued in the year 2002. ## **Crl.A. No: 1750/2004** **-9-** 11. In the result, this Criminal Appeal is disposed of as stated below: In reversal of the judgment of acquittal passed by the learned Magistrate, the first respondent/accused is found guilty and convicted for the offence under section 138 of N.I. Act and she is sentenced to imprisonment till the rising of the court and to pay Rs.50,000/- to PW1 – the complainant as compensation. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj