IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3507 of 2008()
1. K.B.SANTHOSH KUMAR, AGED 44 YEARS
... Petitioner
Vs
1. K.C.SANTHOSH, S/O.CHANDY
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.RAJESH VIJAYAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :31/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3507 OF 2008
............................................
DATED THIS THE 31st DAY OF OCTOBER, 2008
ORDER
Petitioner is the accused and first respondent, the
complainant in C.C.1161 of 2006 on the file of Judicial First
Class Magistrate, Perumbavoor. Case of first respondent is that
petitioner borrowed Rs.92,000/- and towards its repayment,
issued Ext.P1 cheque drawn in his account maintained in
Perumbavoor branch of State Bank of Travancore dated
25.9.2006 and when the cheque was presented through the
account maintained by first respondent in Perumbavoor branch
of Catholic Syrian Bank, it was dishonoured for want of sufficient
funds. First respondent sent Ext.P4 notice demanding the
amount covered by Ext.P1. Petitioner, instead of paying the
amount, sent Ext.P6 reply disputing the liability and thereby
committed the offence under Section 138 of N.I.Act. Learned
counsel appearing for petitioner was heard. Petitioner pleaded
not guilty. His case was one of total denial. First respondent
was examined as PW1 and Exts.P1 to P6 were marked on his
side. Petitioner did not adduce any evidence.
2. Learned Magistrate, on the evidence, found the
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petitioner guilty. He was sentenced to simple imprisonment for
one month and a compensation of Rs.92,000/- and in default,
simple imprisonment for four months. Petitioner challenged the
conviction and sentence before Sessions Judge, Ernakulam in
Crl.A.71 of 2008. Learned Additional Sessions Judge, on
reappreciation of evidence, confirmed the conviction and
sentence and dismissed the appeal. It is challenged in this
revision petition.
3. Learned counsel appearing for petitioner was heard.
The argument of learned counsel is that there is no notice as
provided under Section 138(b) of N.I.Act and for that sole
reason, the conviction is bad. The argument is built on the basis
that Ext.P4 notice does not contain the number of the cheque or
the number of the account in which the cheque was issued and
therefore it is not a valid notice. Learned counsel also pointed
out that even in the complaint, first respondent did not plead the
details of the cheque and therefore courts below should not have
convicted the petitioner.
4. On going through the judgments of courts below, I do not
find any reason to interfere with the appreciation of evidence.
Evidence of PW1 establishes that Ext.P1 cheque was issued by
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petitioner towards repayment of Rs.92,000/- borrowed earlier.
Evidence also establish that cheque was dishonoured for want of
sufficient funds and within the statutory period, Ext.P4 notice
was sent to petitioner, which was received by him under Ext.P5
acknowledgment card. The only question is whether Ext.P4 is a
notice satisfying the provisions of Section 138(1)(b) of N.I.Act.
5. Though learned counsel argued that as the cheque
number and the account number is not mentioned in Ext.P4 and
so, it is not a valid notice, Section 138(b) only provides for a
written demand by the payee to the drawer of the cheque to pay
the amount covered by the dishonoured cheque. Though the
number of the cheque or the number of the account was not
mentioned in Ext.P4, the date of cheque and the amount covered
by the cheque is mentioned. Case of petitioner could have been
appreciated if in Ext.P6 reply, petitioner had contended that he
had issued several cheques and as the number of the cheque is
not mentioned, petitioner is not in a position to pay that amount.
On the other hand, Ext.P6 reply does not disclose any such
defence. It is clear from Ext.P6 reply itself that petitioner is
aware of the demand made by first respondent in Ext.P4. Under
Ext.P4, first respondent demanded the petitioner to pay amount
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of Rs.92,000/- covered under the dishonoured cheque dated
25.9.2006 which is Ext.P1 cheque. Even if the number of the
cheque and the account of revision petitioner is not mentioned in
the complaint, along with the complaint, the dishonoured cheque
was produced and it should be treated and read as part of the
complaint. Therefore I cannot agree with the argument of
learned counsel that Ext.P4 notice does not satisfy the conditions
provided under Section 138(b) of N.I.Act. The conviction of
petitioner for the offence under Section 138 of the N.I.Act is
perfectly legal.
6. Then the only question is with regard to sentence.
Learned Magistrate sentenced petitioner to simple imprisonment
for one month and it was confirmed by learned Sessions Judge.
Interest of justice will be met if the sentence is modified to
imprisonment till rising of court and a fine. So long as the
sentence is not to be varied or modified as against the interest of
first respondent, it is not necessary to issue notice to him.
7. Revision petition is allowed in part. Conviction of
petitioner for the offence under Section 138 of N.I.Act is
confirmed. Sentence is modified. Petitioner is sentenced to
imprisonment till rising of court and a fine of Rs.25,000/- and in
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default, simple imprisonment for two months. On realisation of
fine, Rs.92,000/- to be paid to first respondent as compensation.
Petitioner is granted three months time from today to pay the
fine. Petitioner is directed to appear before the learned
Magistrate on the expiry of three months from today.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-