IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1541 of 2006()
1. D. MURUKAN, S/O. DHARMAN,
... Petitioner
Vs
1. G. SREEKUMARI, D/O. GOMATHY AMMA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.RAJENDRAN
For Respondent :SRI.V.VENUGOPALAN NAIR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/12/2008
O R D E R
M.N.KRISHNAN, J
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CRL.R.P. No.1541 OF 2006
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Dated this the 16th day of December 2008
O R D E R
This revision petition is preferred against the judgment of the III
Addl.District Court, Kollam in Crl.A.No.179 of 2002. The said appeal was
preferred against the conviction and sentence passed by the Judl. I Class
Magistrate Court, Paravoor in CC No.767 of 1998. By the said judgment,
the trial court convicted the accused under Section 138 of the Negotiable
Instruments Act and sentenced him to undergo simple imprisonment for a
period of six months and to pay a compensation of Rs.1, 50,000/-. In appeal,
the appellate court confirmed the conviction and sentence and dismissed the
appeal. It is against that decision, the present revision is filed.
2. Learned counsel for the revision petitioner strongly canvasses only
on one point, viz; that there is a violation of the statutory mandate under
Section 138(b) of the NI Act and therefore the whole prosecution has to fail.
Under Section 138(b) of the NI Act the payee or the holder in due course of
the cheque, as the case may be, makes a demand for the payment of the said
amount of money by giving a notice in writing, to the drawer of the cheque,
CRL.R.P.No.1541/2006 -:2:-
within thirty days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid. So the statutory requirement is
that when a cheque is dishonoured and intimation or information regarding
the dishonour of the cheque comes to the knowledge of the person, who
presents the cheque he is bound to issue a notice within 15 days from such
knowledge or information. What is contended before me is that the cheque
was presented for encashment on 1.9.1998 and there is no evidence to
show when really the complainant got the information of dishonour of the
cheque. Learned counsel for the revision petitioner would submit that when
the cheque presented on 1.9.1998 and it was returned, the complainant has
to come to know about the dishonour of the cheque on the very same date
and therefore the notice issued on 26.9.1998 is much beyond the prescribed
period under the statute and therefore the prosecution is vitiated. He had
brought to my notice the notice received by him where there is an averment
to the effect that the information was received by the complainant only on
17.9.1998 or 19.9.1998. But it is a matter that has to be proved because it
goes into the root of the very prosecution. Therefore on that short point
alone, the matter requires reconsideration. So the conviction and sentence
passed by the trial court and affirmed by the appellate court are set aside
and the matter is remitted back to the trial court for the purpose of
CRL.R.P.No.1541/2006 -:3:-
consideration regarding the statutory compliance under Section 138(b) by
permitting the complainant as well as the accused to let in evidence in
accordance with law. The matter be disposed of after hearing both parties.
Parties are directed to appear before the trial court on 21.1.2009.
Crl.R.P. is disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-