IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 Crl.MC.No. 3571 of 2010(D) -------------------------------------- [CRL.R.P.NO.102/2009 DTD. 05/07/2010 OF SESSIONS COURT, PALAKKAD] .................... PETITIONER/REVISION PETITIONER/COUNTER PETITIONER: --------------------------------------------------------------------------------------- K.MUHAMMED, S/O. KHADER HAJI, VETTATHUKATTIL HOUSE, TRIKKADERI AMSOM, OTTAPALAM TALUK. BY ADVS. SRI.M.REVIKRISHNAN, SRI.P.M.RAFIQ. RESPONDENTS/RESPONDENTS/STATE/PETITIONER/COMPLAINANT: --------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.K.UNNIKRISHNAN, S/O. LATE KRISHNA KURUP, KINAYATH VEETTIL, KADAMPUR DESOM, VADAKUMBRAM AMSOM, OTTAPALAM TALUK. BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3571 OF 2010 =========================== Dated this the 9th day of November,2010 ORDER Petitioner the accused in C.C.46/2008 on the file of Judicial First Class Magistrate-II, Ottapalam taken cognizance for the offence under section 138 of Negotiable Instruments Act, on a complaint filed by the second respondent filed this petition challenging Annexure A order passed by the learned Magistrate as confirmed by learned Sessions Judge in Annexure B order in Crl.R.P.102/2009. By Annexure A order, learned Magistrate allowed second respondent to amend the complaint showing the number of the cheque, as shown in the dishonoured cheque produced, and based on which the complaint is filed. Case of the petitioner is that when the cheque was dishonoured, a notice under section 138(b) of Crl.M.C.3571/2010 2 Negotiable Instruments Act was sent and the demand made in that notice is not for the amount covered by the cheque as shown in the amended complaint and as there was no demand for the amount covered by the dishonoured cheque, no offence under section 138 will lie. Learned counsel argued that in the reply notice produced as additional document petitioner has made it absolutely clear that payment demanded in the notice sent under section 138(b) of Negotiable Instruments Act was in respect of a cheque used during 2001-2002 period and the said account was not operated in 2005 and in such circumstances by amending the complaint, the defence cannot be taken away. 2. On hearing the learned counsel, I do not find any reason to interfere with the order passed by the learned Magistrate in the interlocutory application, which was not interfered by the learned Sessions Judge in the revision, as the defence raised by the petitioner would definitely be available to him at the time of trial. Crl.M.C.3571/2010 3 Petitioner is entitled to contend that there was no demand for the amount covered by the dishonoured cheque, as shown in the amended complaint. In such circumstance, I find no reason to interfere with the orders passed by the courts below. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006