IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 Crl.Rev.Pet.No. 515 of 2001() ----------------------------- CRA.122/1999 of ADDL.SESSIONS COURT, NORTH PARAVUR CC.501/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- M.G.JOHNI, S/O GEORGE, MANAYIL VEEDU (MANAYIL STORES) MARKET ROAD, ALUVA BY ADV. SRI.DINESH R.SHENOY SRI.K.MOHANDAS RESPONDENT(S)/RESPONDENTS/COMPLAINANT --------------- 1. P.O.JOHNI, PADAMADAN VEEDU, NADUVATTOM, MANJAPRA P.O. 2. STATE OF KERALA REP. BY A PUBLIC PROSECUTOR, HIGH COURT OF KERALA ADV. SRI.M.A.ASIF FOR R1 SRI.P.S.BASTIN FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.515/2001 -------------------- Dated this the 12th day of March, 2009 ORDER The accused in C.C.No.501/95 on the files of the Judicial Magistrate of First Class-I, Aluva, is the petitioner in this Revision Petition. He was prosecuted, convicted and sentenced for the offence punishable under Section 138 of the Negotiable Instruments Act, [for short 'the Act']. The conviction and sentence were affirmed by the lower appellate Court. Hence this Revision. 2. The case of the complainant was that the accused, who was running a spare parts shop had borrowed an amount of Rs.25,000/- and had issued Ext.P1 cheque in discharge of the said liability. Cheque when presented for collection, was dishonoured for want of sufficient funds. Ext.P3 notice was issued to the accused. It was served on the accused as evidenced by Exts.P4 and P5. There was neither reply nor payment. Hence the complaint was lodged. 3. The complainant was examined as PW1. He denied that he was acting as collection agent of Advocate Crl.R.P.515/2001 2 P.C.Chacko. To another question put on behalf of the accused whether the cheque was issued as a security or not, he replied that he does not know. The only argument which seems to have been put forward on behalf of the accused was that the answer given by the complainant reveals that there was no transaction between the complainant and the accused. Courts below rightly considered and rejected this contention. 4. I am in agreement with the said finding of the Courts below. The testimony of PW1 shows that there was complete denial of suggestion that he was acting on behalf of Advocate P.C.Chacko. He also deposed that the material portion of the cheque were filled up by the friend of the accused. But the accused had subscribed his signature in the cheque. The accused has not denied his signature in Ext.P1 cheque. 5. Significantly no reply notice was issued to Ext.P3. The complainant will have to be given credit for having discharged his initial burden by examining himself as PW1 and by taking note of the fact that no reply was given to Ext.P3 notice. Crl.R.P.515/2001 3 6. Mr.Dinesh Shenoy, learned counsel for the petitioner submits that one crucial aspect has escaped the notice of the Courts below. He submits that Ext.P3 notice of demand sent by the payee complainant, though dated 25.3.2005, has obviously been sent only on a subsequent date. He refers to Ext.P4 postal acknowledgment slip which bears a date 30.3.2005 and submits that the date seems to be tampered. It is true that there is overwriting in the postal acknowledgment slip. In so far as the date is concerned, the date might be different from 30.3.2005, which is what it currently bears. Acknowledgment card, Ext.P5, bears the date 3.4.1995. Mr.Shenoy contends that the date 30.3.2005 is not the correct date and it has been overwritten with a view to make it appear that the notice has been sent within the statutorily prescribed period. The complainant alleges that he received the dishonour memo on 16.3.1995. Therefore, 15 day period calculated with reference to 16.3.1995 (excluding the said date), expires on 31.3.1995. If therefore, the notice has been sent on 30.3.1995, it is within the 15 day period prescribed in the statute. Mr.Shenoy refers to the judgment of this Court in Madhu v. Omega Pipes Ltd.(1994 (1) KLT, 441) Crl.R.P.515/2001 4 wherein Justice K.T.Thomas (as his Lordship then was) construed the words “made a demand by giving notice” as occurring in clause (b) of proviso to Section 138 of the Act, as imposing an obligation on the payee to have despatched the notice reasonably ahead of the expiry of 15 days. It only says that a notice of demand must be given in writing. In the present case, one will have to proceed on the premise that notice was despatched on 30.3.1995. I take note of the fact that there was no suggestion to the contra the course of the cross-examination of PW1 that there has been overwriting in Ext.P4 postal acknowledgment slip or that it was tampered with and that the notice was actually not sent on the said date. Nor was there any suggestion that the notice was not received. This Court is therefore, to proceed on the premise that the notice was sent on 30.3.1995 and it was actually received. The observations made in paragraph 7 of Omega cannot be construed as laying down the law that in all cases, notice by registered post, in terms of clause (b) of proviso to Section 138 of the Act, will necessarily have to be dispatched at least two to three days prior to the expiry of 15 days (which was then the prescribed period). In these circumstances, I am unable to accept the contentions Crl.R.P.515/2001 5 raised by Mr.Shenoy to the effect that there is a defect in the notice in the present case. 7. In my view, Courts below have correctly come to the conclusion that the accused has committed an offence under Section 138 of the Act. Sentence of a fine of Rs.25,000/-, as originally imposed by the trial Court was modified by the appellate Court and restricted to Rs.5,000/- with a further direction for payment of Rs.20,000/- as compensation, on the premise that the imposition of fine of Rs.25,000/- was beyond the sentencing power of the Judicial Magistrate of First Class. 8. On an over all appreciation of the evidence on record, and having perused the judgment of the Courts below, I am of the considered view that no grounds have been made out for interference in the Criminal Revision Petition. Accordingly, the same is dismissed. V.GIRI, Judge mrcs