IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 CRL.A.No.1034 of 2005 (B) -------------------------------- ORDER ON CRL.L.P.348/05 DT.07/06/05. CC.6/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM. .................... APPELLANT: COMPLAINANT: --------------------------------- SUNIL DUTT, MANIMANGALAM, T.C.NO.18/508 A, PUNNAKKAMUGHAL, ARAMADA, THIRUVANANTHAPURAM. BY ADV. SRI.K.JAJU BABU RESPONDENTS: STATE/ACCUSED: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SRI. P.J.THOMAS, S/O.P.M.JOSEPH, 3 B SOUTH POINT HINTON, NEAR KASBA POLICE STATION, CHITTOOR ROAD, ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1034 of 2005 ------------------------------------------------ Dated this the 28th day of March, 2008 JUDGMENT The complainant in C.C.6/04 on the file of the Judicial First Class Magistrate's Court-V, Thiruvananthapuram is the appellant. He assails in this appeal the judgment passed by the Magistrate under Section 255(1) of the Cr.P.C acquitting the accused of the offence punishable under Section 138 of the N.I. Act. 2. It is contended before me by the learned counsel for the appellant that what he wants in this appeal is only a remand as the learned Magistrate was acquitting the accused after entering finding in favour of the appellant that he has proved the transaction as also execution of Ext.P1 cheque, on the ground that statutory notice under proviso (b) to Section 138 of the N.I. Act is not shown to have been issued within fifteen days of receipt of information regarding dishonour of the cheque as Ext.P5 notice intimating Crl. Appeal No.1034 of 2005 -2- dishonour of the cheque and demanding payment of the amount covered by the cheque is dt.24/04/02 and that was despatched also under Ext.P4 series postal registration receipt on 24/04/02 whereas the date on Ext.P3 is dt.02/04/02 and the date of Ext.P2 is dt.30/03/02. 3. The counsel for the first respondent raised contention to the effect that Ext.P2 cannot be accepted as genuine as it is only a print out and the Branch Manager is not examined as a witness. The contention may not stand as the District Co-operative Bank, Ernakulam has pursuant to Ext.P2 issued Ext.P3 on 02/04/02 to the Manager, Thiruvananthapuram District Co-operative Bank, Balaramapuram branch returning Ext.P1 cheque received dishonoured under Ext.P2. The contention of the first respondent is that the period between 02/04/02 and date of notice namely 24/04/02 is more than fifteen days and therefore, there is no sufficient compliance Crl. Appeal No.1034 of 2005 -3- with proviso (b) to Section 138 of the N.I. Act. 4. According to the learned counsel for the appellant, Ext.P3 is only communication from the District Co-operative Bank, Ernakulam to the Manager of the Balaramapuram branch of the District Co-operative Bank, Thiruvananthapuram forwarding Ext.P1 cheque got dishonoured under Ext.P2; and that the appellant was receiving Ext.P1 cheque from his bankers namely the Balaramapuram branch of the Thiruvananthapuram District Co-operative Bank only on 10/04/02 when it was sent by post by his bankers and that therefore, the notice is within time and that it satisfies proviso (b) to Section 138 of the N.I. Act. The prayer of the counsel for the appellant is only to have a remand of the case to prove the fact that the appellant received Ext.P1 along with Exts.P2 and P3 from his bankers only on 10/04/02. 5. The learned counsel for the first respondent submits that in the event of a Crl. Appeal No.1034 of 2005 -4- remand it may be made clear that the remand is open and it is not after confirming the finding of the court below that the transaction is genuine and that the cheque is issued in discharge of debt as according to him the transaction alleged is not true; and that there is absolutely no evidence also in the case of the appellant having advanced any amount and much less an amount as huge as Rs.3,65,000/-. He also relies on the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC) wherein the Apex Court has held that the presumption under Section 139 of the N.I. Act is not regarding the existence of any debt or regarding the existence of any legally recoverable debt but only a presumption to the effect that the holder of the cheque has been issued the same for discharge of any debt or other liability. 6. In the circumstances, I set aside the judgment of the court below ordering an open remand of the case to the court below for Crl. Appeal No.1034 of 2005 -5- consideration and disposal afresh. The appellant and the first respondent shall appear in the court below positively on 30/04/08. The parties shall be entitled to adduce further evidence as they so chose but this direction shall not be taken as a means to have the case adjourned indefinitely, the case being of the year 2004. The court below shall expedite the trial of the case and shall dispose of the case as early as possible taking into account the fact that the case is now four years old. 7. The appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-