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
