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.51 of 2008 (B) ----------------------------- AGAINST THE ORDER IN CRL.L.P.3/2008 Dated 02/01/2008. ST.330/2005 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... APPELLANT: COMPLAINANT -------------------------------- KARUTHEDATH BEERAN, S/O.YAHU, THOTTADIPPADAM HOUSE, FAROOQ COLLEGE P.O. KOZHIKODE DIST. BY ADV. SRI.P.SAMSUDIN RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. N.P.MAMMAD, S/O.AVARANKUTTY HAJI, NELLIPPARAMBAN HOUSE, KANHIRAPARAMBA, CALICUT AIRPORT P.O., MALAPPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA 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.51 of 2008 ------------------------------------------------ Dated this the 28th day of March, 2008 JUDGMENT The appellant is the complainant in S.T.330/05 on the file of the Chief Judicial Magistrate's Court, Manjeri. In this appeal he assails the correctness of the judgment of the Chief Judicial Magistrate acquitting the first respondent of offence under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 2. The Chief Judicial Magistrate has acquitted the first respondent of offence under Section 138 of the N.I. Act without entering into merits of the case but entering into finding only to the effect that there is no proper notice in compliance with proviso (b) to Section 138 of the N.I. Act. 3. Heard the counsel for the appellant as also counsel for the first respondent and the Public Prosecutor for the second respondent. Ext.P5 is the notice issued to the first Crl. Appeal No.51 of 2008 -2- respondent by the appellant through his lawyer on 20/09/05 consequent on dishonour of Ext.P1 cheque under Ext.P2 memorandum. 4. It is contended before me by the learned counsel for the appellant that Ext.P5 notice calling upon the first respondent to pay the amount of Rs.5 lacks due to the appellant within fifteen days of receipt of notice is sufficient notice under proviso (b) to Section 138 of the N.I. Act as the amount covered by the cheque is also Rs.5 lakhs and the recipient to the notice as also the person on whose behalf the notice is issued is aware of the fact that what is demanded is the amount covered by the cheque. 5. After advancing arguments for some time, counsel for the first respondent also submits that her objections are only to the effect that there is no legally recoverable debt from the first respondent and that the contention advanced in the court below and Crl. Appeal No.51 of 2008 -3- upheld by the Chief Judicial Magistrate is not tenable and that Ext.P5 notice is sufficient notice as envisaged in proviso (b) to Section 138 of the N.I. Act. 6. I am also convinced on the tenor of Ext.P5 notice that the notice satisfies the requirement of a notice envisaged in proviso (b) to Section 138 of the N.I. Act. The court below having acquitted the first respondent only for the reason that Ext.P5 is not notice in compliance with proviso (b) to Section 138 of the N.I. Act the acquittal of the first respondent by the court below deserves to be set aside and the case remanded to the court below for disposal afresh on merits. 7. In the result, allowing this appeal, I set aside the order of acquittal passed by the court below; hold that Ext.P5 notice is sufficient notice in compliance with proviso (b) to Section 138 of the N.I. Act and remand the case back to the court below for disposal Crl. Appeal No.51 of 2008 -4- afresh according to law. The appellant and the first respondent shall appear in the court below positively on 30/04/08. The appellant shall produce a copy of this judgment before the court below to enable the learned Chief Judicial Magistrate to dispose of the case abiding by the directions in this judgment. The office shall forward the records back to the court below forthwith so as to enable the case being taken up on 30/04/08. The parties shall co-operate in the matter of disposal of the case afresh on merits at the earliest taking into account the fact that the case is one of the year 2005. The court below shall dispose of the case as early as possible and in any event within an outer limit of three months from today. K.P.BALACHANDRAN, JUDGE kns/-