IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.Rev.Pet.No. 228 of 2000() ----------------------------- ST.3068/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER(S): /COMPLAINANT --------------------- K.UNNI, S/O.RAVUNNI, VALLIKANHIRAM, POST.NIRAMARUTHUR, (VIA) TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.M.P.M.ASLAM RESPONDENT(S): ACCUSED --------------- 1. P.MOHAMMED ALI @ BAVA, S/O.SAIDALI, POST.NIRAMARUTHUR, (VIA) TIRUR, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.CHANDRASEKHAR BY PUBLIC PROSECUTOR SHRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.228 of 2000 -------------------------------------- Dated this the 14th day of November, 2008. JUDGMENT Heard both sides. 2. This revision arises from the order dated 9.5.1997 in S.T.No.3068 of 1996 of the court of learned Judicial First Class Magistrate, Tirur. Revision petitioner filed a private complaint against the first respondent for offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’). When the matter came up for trial on 9.5.1997, defence counsel raised an argument that the complaint is not maintainable in view of the decision reported in Gopa Devi Ozha v. Sujit Paul (1996(2) KLT 886). Learned magistrate observed that “admittedly the notice contained an amount more than the cheque amount including the interest which is prohibited by the dictum in the above decision”, found that complaint is not maintainable and dismissed it. First respondent was discharged. It is contended by the counsel for revision petitioner that the order under challenge is not sustainable. According to the learned counsel, there is no omnibus demand for any amount in the notice and at any rate, claim for the amount covered by the cheque is clearly identifiable and separable and hence the decision referred to by the learned magistrate has no application. 3. To understand the contention it is necessary to go into the facts of Crl.RP.No.228/2000 2 the case. Complaint was filed following dishonour of the cheque dated 25.4.1996 for the sum of Rs.75,000/-. Learned magistrate took cognizance of the offence and issued summons to the first respondent. The impugned order was passed when the matter came up for trial. Though procedure for summary trial was followed, provisions applicable to summons trial are applicable to summary trial also. Hence, I am to understand that the order of discharge was passed under Section 258 of the Code. In the notice under reference in the impugned order, it is stated about the transaction between the revision petitioner and the first respondent. It is further stated that the first respondent had issued cheque dated 25.4.1996 for the sum of Rs.75,000/- which the first respondent owed to the revision petitioner, that cheque was dishonoured for insufficiency of funds and hence, first respondent was called upon to pay the amount as per the cheque and interest payable under law within 15 days of receipt of the notice. Point for consideration is whether the decision relied on by the learned Magistrate has application to the facts of the case. 4. In Gopa Devi Ozha’s case (supra) it was held that notice of demand (under Section 138(b) of NI Act) should be of the cheque amount and if a bigger or smaller amount is claimed in the notice, it is not sufficient notice. In that case the accused had issued cheque for Rs.5,79,000/- and the demand in the notice was for payment of Rs.6,50,000/-. On the facts it was found that the demand being for an amount larger than the cheque amount, notice is invalid. That decision was relied on by a learned Single Judge of this Court in Raj v. Rajan (1997 (1) KLT 302). But, a Division Bench of this Court in Kunjan Panicker v. Crl.RP.No.228/2000 3 Christudas (1997 (2) KLT 539) held that the decision in Raj’s case which relied on the decision in Gopa Devi Ozha’s case is obiter dicta. The Division Bench observed that the demand as per notice must be for payment of the 'said amount' of money and obviously the 'said amount’ is what is due under the cheque that has been dishonoured. It was also held that where the demand was not vague or ambiguous but, at the same time there was a claim in addition by way of interest and cost, the notice will nevertheless be one demanding payment of the 'said amount', the claim on other counts notwithstanding. This principle was reiterated by the Hon’ble Supreme Court also in various decisions one such decision being Suman Sethi v. Ajay K.Churiwal ((2000) 2 SCC 380). It was held that the notice has to be read as a whole and that if besides stating the cheque amount, other claims such as interest, damages, etc. are also mentioned separately in the notice, it cannot be treated as bad for the reason of not mentioning about the said amount of money. In this case, I stated from the notice that there is specific mention about Rs.75,000/- being the amount which the first respondent owes to the revision petitioner, cheque being issued for the said amount of Rs.75,000/- and, though there is also a claim for payment of interest payable under law, there is specific demand for payment of the amount as per the cheque which, it is clearly discernible from the notice is Rs.75,000/-. Thus, the claim for the amount covered by the cheque is clearly separable and identifiable from the claim for interest. Learned magistrate has not applied his mind while holding that complaint is not maintainable in view of the dictum laid down in Gopa Devi Ozha’s case. The order of discharge cannot therefore, stand Crl.RP.No.228/2000 4 the scrutiny of law. It is liable to be set aside. Revision Petition therefore, succeeds. The order under challenge is set aside. The case is remitted to the court below for disposal in accordance with law after giving both sides opportunity to adduce evidence. Parties shall appear in the court below on 20.12.2008. Since the case is of the year 1996, learned magistrate shall expedite its trial and disposal. THOMAS P.JOSEPH, JUDGE. cks Crl.RP.No.228/2000 5 Thomas P.Joseph, J. Crl.R.P.No.228 of 2000 ORDER 14th November, 2008