IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 203 of 2000(C)
1. A.AMINA
... Petitioner
Vs
1. T.BABY
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.V.N.SWAMINATHAN
Coram
Dated : 23/08/2004
O R D E R
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K.A.ABDUL GAFOOR, J. @@
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CRL.A.NO.203 of 2000@@
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Dated this 23rd August, 2004@@
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.HE 1
JUDGMENT@@
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.SP 2
This appeal is directed against acquittal of
the first respondent in a prosecution launched for the
offence punishable under Section 138 of the Negotiable
Instruments Act. The court below found all the points in
favour of the complainant, but came to the conclusion that
the statutory notice was defective as it was despatched
beyond 15 days of intimation about the bouncing of the
cheques, Exts.P2 and P3 dated 19-8-1996 and 3-1-1997 for
Rs.44,500/= and 25,000/= respectively.
2. The cheques were presented in the bank
and the bouncing of the cheques was informed to the
complainant/appellant as per Ext.P4 dated 25-1-1997.
Ext.P8 is the notice. Though, it is dated 11-2-1997, it
was really posted only on 13-2-1997. If the days are
reckoned from the date of Ext.P4, namely, 25-1-1997, it is
beyond 15 days. Statutory notice ought to have been
issued within 15 days of intimation about the bouncing.
So the court below concluded that the notice was beyond
the time provided for.
3. It is contended by the appellant that
even in para 4 of the complaint it has been clearly
mentioned that dishonour was intimated on 3-2-1997. The
same fact was mentioned in the notice as well. Ext.P4
also discloses that the bank had sent it by registered
post on 25-1-1997. In such circumstances, it was not
possible to receive the memo on the same date itself.
Necessarily, reckoning from 3-2-1997 the date of receipt
of information, the notice despatched on 13-2-1997 is
within the time, it is contended.
4. As per proviso (b) to Section 138 of the
N.I.Act as it stood at the material point of time, the
notice to the drawer of the cheque shall be within 15
days, “of the receipt of information by him from the bank
regarding the return of the cheque as unpaid”. That
means, information passed on to the complainant. When the
complainant has specifically averred that he received
Ext.P4 intimation only on 3-7-1997, in the absence of any
dispute on that count, it could not be taken that he had
received intimation on 25-1-1997 itself, especially when
it is seen from Ext.P4 that it was sent by registered post
on that date. When the averment in the complaint and the
facts mentioned in the notice are taken note of, Ext.P8
notice is within the time provided for in the statute.
Necessarily, when the finding of the court below in that
regard is reversed, it is clear, based on the findings on
other points, that the first respondent/accused is guilty
of the offence punishable under Section 138 of the
N.I.Act.
5. The total amount of the cheuqe is
Rs.69,500/=. In such circumstances, I am of the view that
the accused shall be sentenced as follows.
1) He shall undergo imprisonment for a day,
on a date to be fixed by the court below.
2) He shall also pay a compensation of
Rs.72,000/=(Rupees Seventy Two Thousand only) which if
realised shall be paid to the complainant. The default in
payment of compensation shall result in imprisonment for a
term of three months.
This appeal is allowed as above.
.SP 1
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.HE 2
K.A.ABDUL GAFOOR,
JUDGE.
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ju.
.PA
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23rd August 2004
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