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Kerala High Court
K. Koya vs Aboobacker on 16 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1185 of 2002()


1. K. KOYA, S/O. V.K. CHEKKUTTY,
                      ...  Petitioner

                        Vs



1. ABOOBACKER, S/O. POOLATTAPARAMBIL
                       ...       Respondent

2. STATE OF KERALA REPRESENTED BY

                For Petitioner  :SRI.K.P.MUJEEB

                For Respondent  :SRI.S.V.BALAKRISHNA IYER (SR.)

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :16/06/2010

 O R D E R
            M.SASIDHARAN NAMBIAR,J.
          ===========================
            CRL.R.P.No.1185 & 1186
                      OF 2002
          ===========================

     Dated this the 16th day of June,2010


                    ORDER

Petitioner was convicted and sentenced for

the offence under section 138 of Negotiable

Instruments Act in C.C.410/1993 and

C.C.70/1994 by Judicial First Class

Magistrate’s Court, Parapanangadi. Petitioner

challenged the conviction and sentence before

Sessions Court, Manjeri in Crl.A.4/1996 and

9/1996. Learned Sessions Judge on

reappreciation of evidence confirmed the

conviction and sentence and dismissed the

appeals. The revisions are filed challenging

the conviction and sentence. Crl.R.P.1185/2002

is filed challenging the conviction and

sentence in C.C.410/1993 as confirmed in

Crl.A.4/1996. Crl.R.P.1186/2002 is filed

Crl.R.P.1185 & 1186 of 2002 2

challenging the conviction and sentence in

C.C.70/1994 as confirmed in Crl.A.9/1996. First

respondent contended that promising visa petitioner

obtained Rs.10,000/- and towards its repayment

issued Ext.P1 and P5 cheques respectively for

Rs.6000/- and Rs.4000/- drawn in his account

maintained in Pallikkal Service Co-operative Bank.

When the cheques were presented for encashment,

they were dishonoured under Exts.P2 and P6 memos

for insufficient funds. By Ext.P3 and P7 notices

first respondent demanded the amount covered by the

dishonoured cheques. Both the notices were

returned unclaimed and petitioner did not pay the

amount. Petitioner pleaded not guilty. Learned

Magistrate tried both the cases together and on the

evidence of Pws1 and 2 and Exts.P1 to P8 found the

petitioner guilty. He was convicted and sentenced

to simple imprisonment for one month each and a

compensation of Rs.6000/- and Rs.4000/-

respectively and in default simple imprisonment for

one month each. The contention of the revision

Crl.R.P.1185 & 1186 of 2002 3

petitioner is that the courts below failed to take

note of the fact that the notices demanding the

amount covered by the dishonoured cheques were

returned unclaimed and the complaints were filed

before the expiry of 15 days from the date of

respective dates of intimation and therefore they

are premature and on that sole ground, the

conviction is to be set aside. It is also

contended that petitioner has not been properly

questioned under section 313 of Code of Criminal

Procedure.

2. Ext.P4 is the original notice sent to the

petitioner and returned unclaimed. Ext.P4 shows

that the intimation was given to the petitioner on

9.10.1993 and it was received on return by the

first respondent on 15.10.1993. Even in the

revision, petitioner contended that the date of

intimation namely 9.10.1993 is to be taken as the

date of receipt of notice by the petitioner. The

case is that if that be so, petitioner has 15 days

time to pay that amount and excluding 9.10.1993 the

Crl.R.P.1185 & 1186 of 2002 4

15 days would expire on 24.10.1993. But the

complaint was filed on 22.10.1993 and therefore the

complaint is premature. Learned Sessions Judge has

considered this aspect in the proper perspective.

Relying on the decision of the Apex Court in

Narsingh Das Tapadia v. Goverdhan Das Partani 2000

(3) KLT 605) it was held that the relevant date is

the date of taking cognizance and not the date of

filing of the complaint. If that be so, the

cognizance was taken after the expiry of 15 days

from the date of receipt of notice and therefore

the conviction is legal. Similarly in

C.C.70/1994. Ext.P8 the original notice which was

sent by the first respondent and returned back

unclaimed by the petitioner. It shows that

intimation was given to the petitioner on

16.11.1993. Excluding that day, the fifteen days

would expire on 1.12.1993. The complaint was filed

only on 2.12.1993. Though petitioner contended that

the complaints are premature and therefore the

conviction is illegal, in the light of the

Crl.R.P.1185 & 1186 of 2002 5

declaration of law by the Apex Court in Narsingh

Das Tapadia’s case (supra) the submission can only

be rejected.

3. Section 142 of Negotiable Instruments Act

provides that notwithstanding anything contained in

the Code of Criminal Procedure, 1973, (a)no court

shall take cognizance of any offence punishable

under section 138 except upon a complaint, in

writing, made by the payee or, as the case may be,

the holder in due course of the cheque. (b) such

complaint is made within one month of the date on

which the cause of action arises. Clause (c) of

the proviso to Section 138 provides that the

drawer of such cheque has to fail to make payment

of the said amount of money to the payee or as the

case may be, to the holder in due course of the

cheque, within fifteen days of the receipt of the

said notice. True, on receipt of the notice under

section 138(b) of Negotiable Instruments Act the

drawer has 15 days time to pay that amount. As far

as the complaint is concerned, he has to file the

Crl.R.P.1185 & 1186 of 2002 6

complaint before the expiry of thirty days from the

date of receipt of the notice. As declared by the

Apex Court filing of a complaint and taking

cognizance are two different and distinct aspects.

In C.C. 410/1993 though the complaint was filed on

22.10.1993 and fifteen days from the date of

receipt of notice would expire only on 24.10.1993,

learned Magistrate has taken cognizance only on

2.12.1993. So also in C.C.70/1994 learned

Magistrate has taken cognizance of the offence only

on 7.2.1994 though the complaint was filed on

2.12.1993. In both the cases cognizance were taken

much after the expiry of 15 days in both the cases.

In such circumstances, conviction of the petitioner

for the offence under section 138 of Negotiable

Instruments Act in both the cases is perfectly

legal.

4. Then the only question is regarding the

sentence. The amount covered by Ext.P1 and P5

cheques together is Rs.10,000/-. Learned Magistrate

awarded a compensation of Rs.6000/- and Rs.4000/-

Crl.R.P.1185 & 1186 of 2002 7

respectively with a default sentence of simple

imprisonment for one month. The calendar judgment

in C.C.410/1993 shows that petitioner was arrested

on 21.9.1995 and was released on bail on

23.9.1995.Records also shows that subsequent to the

conviction also petitioner was in custody. In such

circumstances, interest of justice will be met, if

the substantive sentence is modified to the period

petitioner has already in undergone in these cases

and confirming the compensation with the default

sentence.

Revisions are allowed in part. While confirming

the conviction as well as the compensation and the

default sentence, the substantive sentence is

modified to the period petitioner has already

undergone.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

Crl.R.P.NOs.1185 & 1186
of 2002

———————

ORDER

16th June,2010


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