IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 Crl.Rev.Pet.No. 914 of 2001() ----------------------------- CRA.359/2001 of SESSIONS COURT, ERNAKULAM CC.784/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER: ------------------ KARIM, PROPRIETOR, VYPIN BAKERY, MALIPURAM, KOCHI BY ADV. SRI.M.M.SAIDU MUHAMMED SRI.P.A.SHAJI SAMAD RESPONDENTS: ------------- 1. MAY FLOWER (P) LIMITED, PARAMARA ROAD, EKM, COCHIN 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED SRI.C.C.THOMAS (SR.) FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.914/2001 -------------------- Dated this the 1st day of September, 2008 ORDER The accused in C.C.No.784/1999 on the files of the Additional Chief Judicial Magistrate (Economic Offence) Ernakulam, is the petitioner in this Revision Petition. He was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act and was found guilty and convicted and sentenced by the trial Court to undergo simple imprisonment for a period of six months and to pay a fine of Rs.55,000/-, in default of which he was directed to undergo simple imprisonment for two months. 2. The accused filed an appeal before the Sessions Court. Learned Sessions Judge allowed the appeal in part and remanded the case to the trial Court for fresh disposal giving the parties liberty to adduce fresh evidence on all the aspects including on the aspect on which the trial Court had held against the petitioner. Dissatisfied with the order of remand, accused has come up in revision. Crl.R.P.914/2001 2 3. The case of the complainant before the trial Court was essentially to the effect that one Janet Rozario, Reetha Rozario, C.J.Rozario and his two children stayed at hotel Quality Inn Presidency for a period of 35 days. They incurred a bill of Rs.1,60,000/- by way of room rent, food and beverages charges. Apparently, they were not able to pay the amount. But towards discharge of a liability incurred by the above Rozario's, the accused along with them visited the complainant's hotel and issued the cheque in question for an amount of Rs.50,000/- along with another cheque for the amount of Rs.50,000/-. The cheque was dishonoured. Statutory notice was issued. Thereafter, the complaint was filed. 4. The accused took the stand that he did not issue the cheque in favour of the complainant and therefore, the cheque was not supported by consideration. 5. The trial Court appreciated the evidence in totality and held that the accused had not been able to dislodge Crl.R.P.914/2001 3 the statutory presumption under Section 139 of the Negotiable Instruments Act. Accordingly the accused was convicted under Section 138 of the Act and sentenced as already mentioned. 6. In appeal, the learned Sessions Judge referred to a crucial aspect, with regard to the date on which the statutory notice was sent by the complainant to the accused and as to whether it was within the time prescribed under the statute. Reference in this regard was made to Ext.D1. Copy of the plaint in a suit filed by the complainant Company against Janet Rozario, and Reetha Rozario, on the original liability incurred by the said two persons and in relation to which the cheque in question was stated to have been issued in partial discharge of the liability. The learned Sessions Judge referred to the fact that the cheque in question was admittedly presented on 17.4.1997. But the notice of demand Ext.P6, was despatched only on 13.5.1997. It was pointed out that notice would be within time only if Crl.R.P.914/2001 4 the notice of dishonour of the cheque was received by the complainant on 28.4.1997 or thereafter because statute mandated, notice of demand to be given within 15 days of the date of dishonour of the cheque. Reference was made to the averments in paragraph 5 of Ext.D1 wherein it is stated that the cheque in question was dishonoured. In paragraph 10 of the plaint, the date of dishonour of the cheque is suggested to be prior to 25.4.1997. Learned Sessions Judge therefore found that Ext.D1 would suggest that the complainant had received intimation of the dishonour of the cheque at least on 25.4.1997 in which case a notice sent on 13.5.1997 was beyond the period of 15 days prescribed by the statute. Learned Sessions Judge found this as a crucial aspect, but reference was made to the plea made on behalf of the complainant that this was a new plea, which was not taken up before the trial Court. On this premise, learned Sessions Judge felt that the matter will have to go back to the trial Court but in the facts and circumstances of the case, learned Judge directed a fresh Crl.R.P.914/2001 5 disposal and did not order a closed remand as such. 7. Having heard learned counsel for the petitioner and learned counsel for the complainant and having perused the appellate Court judgment as also Ext.D1 and the judgment of the trial Court, I am of the view that there does not seem to be any warrant for the accused to be aggrieved by the judgment of the appellate Court. The learned Sessions Judge has directed a fresh disposal and in the facts and circumstances, did not enter upon the finding on point No.1 as to whether the cheque was issued in discharge of a liability. Even that aspect is left open to be considered afresh by the trial Court. The accused cannot have any grievance as regards the appellate judgment at all. 8. In these circumstances, I do not find any error of jurisdiction or illegality in the judgment of the appellate Court which has directed a fresh disposal. Suffice it to clarify that what has been directed by the appellate Crl.R.P.914/2001 6 Court is a fresh disposal of all aspects, without being confined to anyone of the aspects which arose for consideration. For all these reasons, I do not find any reason to interfere with the judgment of the appellate Court. Criminal Revision Petition is accordingly dismissed. Parties shall appear before the trial Court on 17.11.2008. V.GIRI, Judge mrcs