IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1068 of 2003()
1. JEEMON P. ABRAHAM, PROPRIETOR MIP
... Petitioner
Vs
1. K.V.JACOB, SON OF VARGHESE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.R.HARIKRISHNAN
For Respondent :SRI.A.K.CHINNAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/07/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.R.P.No.1068 of 2003
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ORDER
Petitioner, the accused in C.C.No.5/2000 on the
file of Judicial First Class Magistrate’s Court-
III, Ernakulam, filed this revision challenging the
concurrent conviction and sentence. First
respondent lodged the complaint before the
Magistrate alleging that petitioner, for his
business, borrowed Rs.2,80,000/- and towards its
repayment, issued five cheques and Exhibit P1
cheque for Rs.75,000/- is one among the cheques
issued by the petitioner in the account maintained
by him in the bank and when the cheque was
presented for encashment, it was dishonoured for
the reason of “insufficient funds and account
closed”. It was intimated under Exhibits P2 and P3
to the first respondent. First respondent sent the
original of Exhibit P8 notice to the petitioner at
his official address as well as in the residential
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address, evidenced by Exhibit P4 series postal
receipts and when the postal acknowledgment cards
were not received back, the counsel, who sent the
notices, sent Exhibit P5 complaint to the postal
authorities, for which, Exhibit P7 reply was
received stating that both the notices were served
on the petitioner. But, he failed to pay the
amount. Therefore, it is alleged that petitioner
committed the offence under Section 138 of
Negotiable Instruments Act.
2. Learned Magistrate took cognizance of the
offence. Petitioner pleaded not guilty. First
respondent examined himself as PW1 and the Manager
of the Bank as PW2 and Post Masters as PWs 3 and 4
and marked Exhibits P1 to P10. Petitioner was
examined as DW2 and the Manager of the Bank was
examined as DW1 and Exhibit D1, the ledger folio of
his bank account, was also marked.
3. Learned Magistrate, on the evidence, found
that Exhibit P1 cheque was issued by the petitioner
towards discharge of an existing liability and it
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was dishonoured as the account was closed
subsequent to the issuance of the cheque and
Exhibit P8 notice was served on the petitioner, but
he failed to pay the amount and petitioner,
thereby, committed the offence under Section 138 of
Negotiable Instruments Act. He was sentenced to
simple imprisonment for three months and a
compensation of Rs.50,000/-. Though petitioner
challenged the conviction and sentence before
Sessions Court, Ernakulam in Crl.A.No.637/2001,
learned Additional Sessions Judge, on re-
appreciation of evidence, confirmed the conviction
and sentence and dismissed the appeal. It is
challenged in the revision.
4. Learned counsel appearing for the petitioner
and first respondent were heard.
5. Learned counsel appearing for the petitioner
challenged the conviction and sentence on the
ground that no notice as provided under Section 138
(b) of Negotiable Instruments Act was served on the
petitioner. Argument of the learned counsel is that
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there is no evidence to prove that a notice
demanding the amount covered by the dishonoured
cheque was served on the petitioner within the
statutory period and therefore, the conviction is
bad.
6. Learned counsel appearing for the first
respondent pointed out that Exhibit P4 series
postal receipts with Exhibit P8, the office copy of
the notice, establish that notice swere sent by
registered post in the correct address of the
petitioner to his office as well as to the
residence and Exhibit P7 reply received from the
postal authorities establishes that both the
notices were served on the petitioner and
therefore, the contention is only to be rejected.
7. Learned Magistrate and learned Additional
Sessions Judge appreciated the evidence in the
proper perspective. Though it is contended that
Exhibit P1 cheque was issued only as a security, on
the evidence of PW1 and DW1, courts below rightly
found that Exhibit P1 cheque was issued towards
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repayment of Rs.75,000/- borrowed. Evidence also
establish that the cheque was dishonoured as there
was no sufficient amount in the account and the
account was closed before its dishonour. The only
question is whether first respondent has complied
with the provisions of Sections 138(b) of
Negotiable Instruments Act.
8. Section 138(b) of Negotiable Instruments Act
mandates that the payee has to demand the amount
covered by the dishonoured cheque in writing from
the drawer of the cheque. The drawer of the cheque
has to pay the amount covered by the cheque within
fifteen days of receipt of the demand. So also, the
complaint is to be filed within thirty days from
the date of cause of action. The cause of action
would arise on the expiry of fifteen days from
receipt of the demand in writing. Exhibit P8 is
the office copy of the notice sent through the
counsel by the first respondent. Exhibit P4 series
of postal receipts establish that notices were sent
in the official address as well as in the
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residential address of the petitioner by registered
post. Though the postal acknowledgment cards were
not received, Exhibit P5 letter sent by the counsel
establishes that he has complained about non
receipt of the postal acknowledgment cards. Exhibit
P7 reply establishes that an enquiry was conducted
on receipt of Exhibit P5 complaint and the Deputy
Superintendent intimated the Senior Superintendent,
R.M.S., Ernakulam Division that both the registered
notices, which were registered as 2607 and 2608,
were delivered respectively on 16.6.1998 and
13.6.1998. By Exhibit P7, the counsel appearing for
the first respondent was intimated that the
registered notices were delivered on 16.6.1998 and
13.6.1998. In spite of Exhibit P7 reply, when
examined as DW2, petitioner did not depose that he
did not receive the registered notices sent under
Exhibit P4 series of postal receipts or that the
information furnished to the counsel for the first
respondent that notices were properly served on the
petitioner is not correct. In such circumstances,
CRRP 1068/03 7
it is futile for the petitioner to contend that no
notice was served on him. Evidence establishes that
in spite of receipt of notice, petitioner did not
pay the amount. In such circumstances, conviction
of the petitioner for the offence under Section 138
of Negotiable Instruments Act is perfectly legal.
9. Then the only question is regarding the
sentence. Learned counsel appearing for the first
respondent submitted that the total amount borrowed
is Rs.2,80,000/-. Though Exhibit P1 cheque is for
Rs.75,000/-, the balance was also not received, as
the account was closed. Learned counsel appearing
for the petitioner submitted that the cheque is for
Rs.75,000/- alone and in the interest of justice,
the sentence be modified awarding proper
compensation to the first respondent. Considering
the entire facts and circumstances of the case,
interest of justice will be met if the sentence is
modified to imprisonment till rising of court and
adequate compensation to the first respondent.
CRRP 1068/03 8
Revision is allowed in part. Conviction of the
petitioner for the offence under Section 138 of
Negotiable Instruments Act is confirmed. Sentence
is modified. Petitioner is sentenced to
imprisonment till rising of court and a
compensation of Rs.80,000/- and in default, simple
imprisonment for three months. Petitioner is
directed to appear before Judicial First Class
Magistrate-III, Ernakulam on 11.08.2010. If
petitioner has deposited any amount before the
Magistrate as directed by this Court, while
suspending the sentence, he need deposit only the
balance amount and first respondent is entitled to
withdraw the amount in deposit. The Magistrate is
directed to execute the sentence.
6th July, 2010 (M.Sasidharan Nambiar, Judge)
tkv
CRRP 1068/03 9
M.Sasidharan Nambiar, J.
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Crl.R.P.No.1068 of 2003
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ORDER
6th July, 2010