IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 Crl.Rev.Pet.No. 1960 of 2004(D) ------------------------------- CRA.483/2001 of ADDL.SESSIONS COURT, PARAVUR ST.5853/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVUR .................... REVN. PETITIONER: PETITIONER -------------------------------------------------- LOHITHADAS, S/O. KUNJAPPAN, KACHANIKODATH HOUSE, OLANAD, ALAPPUZHA. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENTS: RESPONDENTS ---------------------------------------------- 1. P.M.VARGHESE, S/O. MYCKIL, PATTUPARAMBIL, CHANDRATHIL ROAD, CHUTTUPADUKARA, EDAPPALLY P.O., ERNAKULAM DISTRICT 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.K.MEETHIYAN KUNJU PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== Crl.R.P.No.1960 of 2004 ================================== Dated this the 26th day of February, 2008. ORDER Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act. Keeping aside all other details, for the purpose of this revision, the following facts, as found by the courts below and emanating out of the evidence needs to be noted. (1) Ext.P1 cheque was issued by the accused on 30-6-1998. (2) Ext.D3 notice was issued on 1-7-1998, that is, the next day, intimating dishonour on presentation of the cheque. (3) The endorsements on the reverse of Ext.P1 would show that the cheque was presented on 30-6- CRRP1960/2004 -:2:- 1998 itself, for the first time. That cheque was not a crossed one. (4) Ext.D1 plaint is filed by the complainant before the civil court on 13-7-1998 producing therewith copy of Ext.D3 notice and averring in paragraph 2 of that plaint that the defendant (accused) did not repay the amount or reply to the notice, though the accused received the notice. (5) It is shown by the endorsements in Ext.P1 that the cheque was again returned on presentation, on 11-8-1998. 2. With the aforesaid facts, it has to be noted that though the cheque could have been presented on a number of times within the statutory time limit of its currency, the cause of action for taking cognizance of a complaint in terms of Section 142 of the NI Act would depend upon the CRRP1960/2004 -:3:- date of service of the first notice and that would occur only once and if a notice has once been issued following a dishonour, a subsequent presentation of the cheque, though may be legal, cannot result in a second cause of action for an offence punishable under Section 138 of the NI Act. (See Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (2) KLT 765 SC). 3. Away from what is stated above, the courts below took the view that Ext.D3 notice was returned with the endorsement “returned to sender” and therefore the same does not result in a cause of action and hence Ext.P7 notice issued after the second presentation of the cheque was sufficient to sustain the complaint. This view is contrary to law because, the complainant, as P.W.1, has admitted the institution of Ext.D1 and has stated that the averments therein are true. It is the CRRP1960/2004 -:4:- specific statement in paragraph 2 of Ext.D1 that notice was received by the defendant (accused), however that, he did not repay or reply to the notice. On the face of such a statement by the complainant in his Ext.D1 plaint, the accused is entitled to take the benefit of that statement and contend that, even according to the complainant, a notice was served on the accused at least on any day before 13.7.1998, the date of institution of Ext.D1 plaint. If that be so, the complaint, instituted on 14-9-1998, is time barred and the trial court could not have taken cognizance of that complaint in view of the period of limitation prescribed in Section 142(a) of the NI Act. In the result, the impugned judgment, conviction and sentence are set aside and the complaint is dismissed. Having regard to the peculiar circumstances of the case, in exercise of the powers under Article 227 of the Constitution of CRRP1960/2004 -:5:- India, it is directed that if any amount has been deposited by the accused in obedience to the conditions imposed by this Court or the lower appellate court while granting bail, suspension of sentence etc., such amounts shall be transmitted to the appropriate court for satisfaction of a part of the decree stated to have been passed against the accused, the defendant in Ext.D1 suit. Thottathil B.Radhakrishnan, Judge. sl.