IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRL.A.No. 788 of 2002() ---------------------------------- CC.844/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT(S): COMPLAINANT: -------------------------- T.K.APPUKUTTAN, THANDASSERIL HOUSE, DASAN VIHAR, T.Y.2A/13, THAIKUDAM, VYTTILLA. BY ADV. MR.BENNY JOSEPH RESPONDENT(S): ACCUSED & STATE -------------------------- 1. P.X. LOUIS, S.T.D. BOOTH, NEAR BEST BAKERY, KACHERIPADY, KOCHI-18. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS.MR.C.KHALID FOR R1 MR.N.GOPINATHA PANICKER FOR R1 MR.P.VISWAMBARAN FOR R1 MR.R.O.MUHAMED SHEMEEM FOR R1 MR.T.P.SAJID (THALASSERY) FOR R1 SMT.NASEEHA BEEGUM P.S. FOR R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 788 OF 2002 = = = = = = = = = = = = = = = Dated this the 25th day of May, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.844/00 of the Judicial First Class Magistrate-I, Ernakulam. It is the case of the complainant that the accused had borrowed a sum of Rs.30,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds. A notice Ext.D2 was issued on 5.8.1998 and another notice Ext.D4 was issued on 2.9.1998. The Court below on an appreciation of the materials available held that execution of the cheque has been proved and the cheque has been issued towards the discharge of the liability but turned down the case of the complainant on the ground that the action is barred by limitation. It is against that decision the complainant has come up in appeal. Crl.A. 788 OF 2002 -2- 2. The points that arise for determination is; (1) Whether the cause of action is barred by limitation? and (2) Is there anything to interfere with the decision rendered by the Court below? 3. The learned counsel for the appellant strongly contends before me that Ext.D2 notice dated 5.8.1998 was defective mainly for the reason that it does not contain the name of the person in whose favour the cheque has been issued. The learned counsel would contend it is a defective notice and that was why a fresh notice was issued after representing the cheque in the form of Ext.P4 which complies with all the statutory requirements and according to him issuance of Ext.P4 validates the whole matter and there cannot be any limitation. 4. On the contra, the learned counsel for the respondents would contend that Ext.D2 itself is not defective and therefore one cannot hold that there was any necessity to issue Ext.P4 after representing the cheque and that it is only done with the intention to get out of the question of limitation. Crl.A. 788 OF 2002 -3- 5. The learned counsel for the appellant had cited before me the decision of this Court reported in Aniyan Thomas Chacko v. Thevarvelil Bankers (2006 (4) KLT 245). It was a case where one notice was issued and it does not contain the name of the Bank and therefore subsequently the cheque was represented and thereafter a notice was taken and cause of action was commenced. It was held in that decision that when the first notice is defective and that too on account of a mistake of a lawyer it should not be taken as a ground to non-suit the complainant. In that case the learned Judge had exhaustedly discussed the case law on the point including the decision of the Apex Court in Sadanandan Bhadran v. Madhavan Sunil Kumar (1998(2) KLT 765). Learned judge had referred to Sadanandan Bhadran's case in detail. In Sadanandan Bhadran's case the Apex Court did not accept the dictum of the Full Bench of this Court and held that when notice of demand is issued by the payee to the drawer of the cheque after dishonour of the cheque and the drawer receives such notice, the clock of limitation will start ticking and the complaint must be filed within 45 days of such Crl.A. 788 OF 2002 -4- receipt of the notice of demand. The Apex Court in that decision did not consider about the defective notice and the Apex Court had the opportunity to consider the same in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. & others(2001(1) KLT 528). It was a case where a notice was send and the accused raised a contention that he had only received a blank cover and therefore the Apex Court held that there is nothing wrong in the complainant representing the cheque again and issuing a notice. The dictum laid down by the decision referred to above also indicates that if there is a defect in the notice which goes to the root of the matter and that too due to the mistake committed by the lawyer it enables the complainant to represent the cheque for encashment and subsequently issue a notice. When faced with such situation the learned counsel for the respondent would submit before me that he must be given an opportunity to prove that Ext.D2 is not defective at all and it contains all the necessary ingredients and that he has no quarrel that it is addressed to his wife. So this is a matter which requires consideration. Therefore I feel an Crl.A. 788 OF 2002 -5- opportunity can be given and further the trial court will also get an opportunity to find the dictum laid down in 2004(1) KLT 245 in analyzing the facts and circumstances of the case. So I set aside the judgment passed by the trial court on the question of validity of notice and the trial court after permitting both the sides to adduce evidence, hear them and shall decide the question. The result will follow on the basis of the decision on notice. Parties are directed to appear before the trial court on 30.6.2009. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 788 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 788 OF 2002 = = = = = = = = = = = J U D G M E N T 25th May, 2009