IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 490 of 2007()
1. RAVEENDRAN,
... Petitioner
Vs
1. SMT.RAMANI, POOVAKKATTU VEEDU,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.VINOY VARGHESE KALLUMOOTTILL
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :08/08/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO. 490 OF 2007
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Dated this the 8th day of August, 2007
JUDGMENT
This appeal is filed against the judgment in C.C. No. 1632 of 2001
on the file of the Judicial First Class Magistrate’s Court II, Kollam. The
appellant is the complainant.
2. The case of the complainant was that the accused – first
respondent herein borrowed from him an amount of Rs.45,000/- and issued
Ext.P1 cheque in discharge of the said liability which when presented to
the bank for encashment was dishonoured stating ” account closed”. On
receipt of intimation regarding dishonour of the cheque, statutory notice
was issued to the accused and inspite of receipt of notice, the amount
covered by the cheque was not paid and hence, the complaint was filed.
To prove the case against the accused, the complainant himself was
examined as PW.1 and Exts.P1 to P4 were produced. No oral or
documentary evidence was adduced on the side of the defence. On
closing the evidence of the complainant, the accused was questioned under
CRL.APPEAL NO.490/2007 2
Section 313 Cr.P.C. She denied the allegations levelled against her.
3. By the impugned judgment, the court below acquitted the accused
on the sole ground that the complainant – appellant failed to prove that the
statutory notice was sent to the accused within 15 days of receipt of
intimation from the bank regarding dishonour of the cheque. The trial
court also found that the complainant did not produce the copy of the
intimation he had received from the bank showing dishonour of the
cheque.
4. Heard the learned counsel appearing for the appellant and
perused the records made available before this Court. It is seen that the
appellant has produced Annexure A1 along with the appeal memorandum
which shows that the cheque in question was dishonoured on 29.6.2000.
Learned counsel appearing for the appellant submits that the date
mentioned in Annexure A1 is the date of intimation of dishonour of the
cheque. Counsel further submits that as per Section 138 of the Negotiable
Instruments Act, 1881 obligation is cast on the complainant to give notice
regarding dishonour of the cheque within 15 days from the date of receipt
of the intimation and to give such time to the accused to repay the amount
covered by the cheque. Hence, according to the learned counsel, the
CRL.APPEAL NO.490/2007 3
impugned judgment is not sustainable.
5. It is to be noted that the trial court acquitted the accused only on
the ground that the document showing the date of intimation of dishonour
of the cheque was not produced by the complainant. In all other respects,
the trial court accepted the case of the complainant. The question to be
considered is whether by not producing the intimation of dishonour of the
cheque, the appellant has violated the provision regarding issuance of
notice within 15 days of intimation. In this context, the purpose of
giving notice to a drawer of the cheque has been considered by the Apex
Court in the decision reported in Rajneesh Aggarwal v. Amit J. Bhalla
(2001) 1 S.C.C. 631. In the above judgment, the Apex Court held as
follows:
“The object of issuing notice indicating the
factum of dishonour of the cheques is to give an
opportunity to the drawer to make the payment
within 15 days, so that it will not be necessary
for the payee to initiate any criminal action, even
though the bank dishonoured the cheques. ……”
Hence, the stipulation of notice within 15 days of intimation by itself will
not free the accused – first respondent from payment of the amount
covered by the cheque. In this context, the latest judgment of the Apex
CRL.APPEAL NO.490/2007 4
Court reported in Alavi Haji, C.C. v. Palapetty Muhammed, 2007(3)
I.L.R. (Kerala) 203 is also to be looked into. In the said judgment the
Apex Court held that even if statutory notice is not given to the accused, it
is enough to give him a warning and the time to repay the amount covered
by the cheque and that this can be done even after receipt of summons
from the court.
6. In the above circumstances, the reason stated by the trial court
for acquitting the accused – first respondent is not legally sustainable.
Hence, the impugned judgment is set aside and the matter is remanded to
the trial court for fresh consideration from the stage at which the
impugned judgment was passed.
The Crl. Appeal is allowed by way of remand. The appellant shall
appear before the trial court on 15.9.2007. The trial court shall issue fresh
notice to the first respondent on appearance of the appellant. The parties
are allowed to adduce additional evidence, if any.
(K.THANKAPPAN, JUDGE)
sp/
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