IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 CRL.A.No.188 of 2007 (C) ------------------------------ ORDER IN CRL.L.P.25/2007DT.12/01/07 ST.1141/2005 of JUDL. FIRST CLASS MAGISTRATE'S COURT-I, KOTTAYAM. .................... APPELLANT: APPELLANT/COMPLAINANT ----------------------------------------------- MANOJ JAMES, S/O.CHACKO,KOTTARAMUKALIL HOUSE, ATHIRAMPUZHA P.O, KOTTAYAM. BY ADV. SRI.TITUS MANI RESPONDENTS: RESPONDENTS/ACCUSED AND STATE -------------------------------------------------------------- 1. CHANDRIKA, W/O.BINU,VANCHIPURAKAL HOUSE, MANJOOR P.O,KOTTAYAM. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.V.K.SUNIL PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.188 of 2007 ------------------------------------------------ Dated this the 3rd day of January, 2008 JUDGMENT The complainant in a complaint filed under Section 138 of the N.I. Act which has been taken cognizance of and registered as S.T.1141/05 on the file of the Judicial First Class Magistrate's Court-I, Kottayam is the appellant, he being aggrieved by the acquittal of the accused in the case under Section 255 (1) of the Cr.P.C. 2. Ext.P1 cheque in the case was dishonoured on 31/05/05 and Ext.P3 notice was issued only as late as on 25/07/05. Hence, it is for the reason that the said notice was not issued within the statutory period and therefore, no cause of action has arisen for the complaint that the accused was found not guilty and acquitted by the court below. 3. It is contended before me by the learned counsel for the appellant that Crl. Appeal No.188 of 2007 -2- intimation regarding dishonour was received by the appellant only on 05/07/05 and therefore, Ext.P3 notice issued on 25/07/05 intimating dishonour and demanding payment of the amount covered by the cheque is sufficient compliance with Section 138(b) of the N.I. Act and the accused therefore, should not have been acquitted. 4. As rightly pointed out by the counsel for the appellant, the acquittal of the accused was on the wrong notion that the appellant received notice of dishonour on 31/05/05 and still he issued Ext.P3 notice only on 25/07/05 far beyond the statutory period. In fact it is a mistake committed by the court and the appellant. In the proof affidavit filed in the court below by the appellant/complainant in para 3, it is specifically alleged that Ext.P1 cheque was forwarded for collection through his bankers namely, the Civil Station branch of the State Crl. Appeal No.188 of 2007 -3- Bank of Travancore and that was returned dishonoured for reason of insufficiency of funds under memo dated 05/07/05 and that is marked as Ext.P2. But the court below has marked as Ext.P2, the memorandum of dishonour dt.31/05/05 which memorandum is one issued by the drawee bank to the bankers of the appellant. The appellant received intimation of the said dishonour through his bankers only on 05/07/05 under memorandum issued by his bankers in that behalf. The said memorandum has been produced as document No.3 along with the complaint filed in the court below and memorandum issued by the drawee bank to the bankers of the appellant produced as document No.2 was mistakenly marked as Ext.P2 in lieu of document No.3 produced along with the complaint. In the circumstances, the acquittal of the accused by the court below is by a mistake and the order of acquittal deserves to be reversed and the case remitted back to the Crl. Appeal No.188 of 2007 -4- Magistrate for consideration afresh after marking dishonour memorandum received by the appellant/complainant from his bankers produced as document No.3 along with the complaint also on the side of the appellant. 5. In the result, allowing this appeal, I set aside the order of acquittal passed by the Magistrate and remit S.T.1141/05 back to the Magistrate for consideration afresh on merits marking also document No.3 produced along with the complaint as an exhibit on the side of the appellant/complainant. Parties shall appear in the court below positively on 30/01/08 and the learned Magistrate shall dispose of the case afresh within one month thereafter. K.P.BALACHANDRAN, JUDGE kns/-