IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.MC.No. 3438 of 2006() ------------------------- ST.399/2005 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... PETITIONER(S): ACCUSED: ----------------------- V.M. ANTHRAYOSE, VARIKKAMACKAL HOUSE, VELLORE P.O., PAMPADY, KOTTAYAM. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT: --------------------------- 1. N.P.R. FINANCE LTD., 41/1787, REP. BY BRANCH MANAGER, E.NARAYANAN, S/O. EASWARAN, KOCHI-18. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.S.SREEKUMAR FOR R1 PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ```````````````````````````````````````````````````` Crl. M.C. No. 3438 OF 2006 D ```````````````````````````````````````````````````` Dated this the 7th day of September, 2009 O R D E R Petition filed under section 482 Cr.P.C. 2. The 1st respondent filed a complaint against the petitioner alleging offence under section 138 of the Negotiable Instruments Act. As per the allegations in the complaint, the petitioner, towards discharge of monthly hire amount and expenses, had issued a cheque dated 21.10.2004 for Rs.5,36,142/- drawn on a bank mentioned by the petitioner. The cheque was presented to the bank but it was dishonoured for the reason 'funds insufficient'. A lawyer notice was issued dated 24.11.2004 demanding the amount covered by the cheque. Though intimation was given to the accused on 29.11.2004 and he sent a reply, the amount was not paid. In such circumstances, within the stipulated time, complaint was filed under section 138 of the N.I. Act. 3. Learned counsel for the petitioner submitted that the transaction was in respect of a hire purchase and no notice as Crl.M.C.3438/06 : 2 : contemplated under section 138 of the N.I. Act is issued demanding payment of the money. Annexure-A3 is the sole notice issued to the petitioner which is dated 24.11.2004 and it will not show that any demand was made for payment of the amount covered by the cheque. The said notice only shows the details of the payment to be made. Therefore, for want of notice under section 138, the criminal prosecution launched is bad in law, it is submitted. 4. Learned counsel for the respondent argued that Annexure-A3 is not a notice based on which the criminal prosecution is launched. It is pointed out that Annexure-A4 is a reply notice issued on behalf of the petitioner as a reply to the notice issued to him dated 24.11.2004. The actual notice issued under section 138(b) is produced as Ext.R1(a) along with the counter affidavit filed. It will clearly go to show that the petitioner was informed of the dishonour of the cheque and the demand was also made for payment of the amount covered by the cheque. It cannot be said that there is violation of Section 138 in respect of the notice issued, it is submitted. Crl.M.C.3438/06 : 3 : 5. On hearing both sides and going through the documents produced, I am satisfied that this is not a case where there is absence of notice under Section 138 of the N.I. Act. The reply Annexure-A4 itself indicates that a notice was sent to the accused as required under the provisions of N.I. Act. Annexure- A3 has been issued on the same day, but it cannot be treated as the notice which sent under section 138 of the N.I. Act. I find absolutely no merit in this petition and it is liable to be dismissed. Petition is dismissed. (K. HEMA, JUDGE) aks