IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1689 of 2008()
1. K.K.NAUSHAD, AGED ABOUT 38 YEARS,
... Petitioner
Vs
1. ROYCE KIZHAKOODAN,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.P.M.HABEEB
For Respondent :SRI.P.M.MOHAMMED SHIRAZ
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No.1689 OF 2008
===========================
Dated this the 5th day of November,2009
ORDER
Petitioner is the accused and first respondent the
complainant in C.C.332/2007 on the file of Judicial
First Class Magistrate Court-VII, Ernakulam. This
petition is filed under section 482 of Code of Criminal
Procedure to quash Annexure A1 complaint and the
cognizance taken contending that on the complaint the
learned Magistrate should not have taken cognizance of
the offence. As petitioner challenged the procedure
adopted by the learned Magistrate as well as the
correctness of the cognizance taken, entire records
were called for from the Magistrate.
2. Learned counsel appearing for the petitioner
and first respondent were heard.
3. On hearing the counsel, I find it not
necessary to deal with the controversies with regard
to the procedural aspect followed by the learned
Magistrate.
4. As per Annexure A1 complaint a cheque for
Rs.1,33,536/- without showing the date of the cheque
Crll.M.C.1689/2008 2
was issued by the petitioner towards payment of the amount
due to the first respondent and first respondent presented
the cheque for encashment from Thazhe Chovva branch of
Elayavoor Service Co-operative Bank. The cheque was
dishonoured. It was intimated to the first respondent by
Vyttila Branch of State Bank of Travancore, where the
cheque was presented. On getting intimation dated
3.9.2007, first respondent sent notice dated 6.9.2007 to
petitioner under section 138(b) of Negotiable Instruments
Act demanding the amount. Though petitioner received the
notice, he did not pay the amount and thereby committed the
offence.
5. The case of the petitioner is that when the date of
the cheque is not mentioned and the cheque is not produced
it is not possible to find out whether the cheque was
presented within the statutory period or not and on that
ground alone the complaint is to be quashed. It is also
pointed out that first respondent had originally sent a
notice dated 23.7.2007 enclosing a letter received from
Vyttila Branch of State Bank of Travancore dated 16.7.2007
demanding the amount covered by the dishonoured cheque as
State Bank of Travancore informed him that the cheque was
dishonoured by the Elayavoor Service Co-operative Bank on
23.4.2007. The said letter was received by the petitioner.
Crll.M.C.1689/2008 3
But on the failure to pay no complaint was lodged based on
the said notice, but a second demand was made. It is
contended that as commission of offence was completed on
the expiry of 15 days from the date of receipt of the
notice dated 23.7.2007, the cognizance taken based on the
subsequent notice is unsustainable.
6. The records show that the complainant was examined
as PW1 and he was cross examined also and it is at that
stage petition was filed and the proceedings were stayed.
The records contain Ext.D1 and D2 the letters sent by first
respondent dated 23.7.2007 demanding the amount covered by
the dishonoured cheque stating that by Ext.D2 intimation
of Vyttila Branch of State Bank of Travancore the cheque
was reportedly dishonoured on 23.4.2007 for insufficient
funds. Therefore petitioner has asked to pay that amount
immediately. First respondent as PW1 admitted at the time
of cross examination that he had sent Ext.D1 letter along
with Ext.D2 copy of the letter and Ext.P3 the subsequent
notice was sent based on a subsequent intimation from the
Bank, without presentation of the cheque once again.
7. The question is whether first respondent is entitled
to sent a notice demanding the amount covered by the
dishonoured cheque once again after completion of the
offence and then lodge a complaint. The position is
Crll.M.C.1689/2008 4
squarely covered by the decision of the Apex Court in SIL
Import, U.S.A v. Exim Aides Silk Exporters (1999(2) KLT
275). Learned counsel appearing for the first respondent
submitted that as held by the Apex Court in
S.L.Construction & another v. Alapati Srinivasa Rao(ILR
2009(2) the complaint based on a subsequent demand and
its failure is legal. I cannot agree with the submission.
When the payee gets intimation from the Bank that the
cheque was dishonoured, as provided under section 138(b) of
the Negotiable Instruments Act, he has to demand the amount
covered by the cheque in writing from the drawer of the
cheque. Ext.D1 is the said demand made on 23.7.2007.
8. As provided under section 138(c)of Negotiable
Instruments Act, the drawer of the cheque has to make the
payment as demanded, within fifteen days of receipt of the
notice. As provided under section 142(b),no complaint
shall be made after the expiry of one month from the date
on which the cause of action arises under clause (c) of the
proviso to Section 138. After the expiry of thirty days
from the date of failure of the petitioner to pay the
amount as demanded under Ext.D1 , the offence is completed.
Thereafter a complaint cannot be filed.
9. The law is settled in SIL Import’s ase (supra) as
Crll.M.C.1689/2008 5
follows:-
“The upshot of the discussion
is, on the date when the notice
sent by Fax reached the drawer
of the cheque the period of 15
days (within which he has to
make the payment) has started
running and on the expiry of
that period the offences
completed unless the amount has
been paid in the meanwhile. If
no complaint was filed within
one month therefrom the payee
would stand forbidden from
launching a prosecution
thereafter, due to the clear
interdict contained in S.142 of
the Act.”
Though learned counsel appearing for first respondent
relying on S.L.Constructions case (supra) argued that a
complaint filed on the third notice was held valid, facts
are different. It is clear that in that case first notice
was not produced and it was not proved that it was served on
Crll.M.C.1689/2008 6
the drawer. The second notice was proved to be not served
on the drawer. Hence on the failure to pay the amount as
demanded on the third notice, cause of action has arisen.
That is not the case herein. Ext.D1 notice was served on
petitioner and on his failure the offence was
completed.Ext.P3 notice was sent later after the expiry of
the period even for filing a complaint under section 138 and
142 of Negotiable Instruments Act on Ext.D1 notice. Hence
even if the trial is to be held in C.C.332/2007, petitioner
cannot be convicted for the offence. In such circumstances,
the complaint can only be quashed.
Petition is allowed. C.C.332/2007 on the file of
Judicial First Class Magistrate Court-VII, Ernakulam is
quashed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006