IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.Rev.Pet.No. 3507 of 2008() ------------------------------ CRA.71/2008 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.1161/2006 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): ACCUSED ---------------------------- K.B.SANTHOSH KUMAR, AGED 44 YEARS S/O. M.V.BHASKARAN PILLAI,KALASADANAM, VALYANCHIRANGARA P.O., PUNNUR. BY ADV. SRI.RAJESH VIJAYAN RESPONDENT(S): --------------- 1. K.C.SANTHOSH, S/O.CHANDY KAVALAMMAKAL VEEDU, KANJIRAKKAD, PERUMBAVOOR, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. BY PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3507 OF 2008 ............................................ DATED THIS THE 31st DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in C.C.1161 of 2006 on the file of Judicial First Class Magistrate, Perumbavoor. Case of first respondent is that petitioner borrowed Rs.92,000/- and towards its repayment, issued Ext.P1 cheque drawn in his account maintained in Perumbavoor branch of State Bank of Travancore dated 25.9.2006 and when the cheque was presented through the account maintained by first respondent in Perumbavoor branch of Catholic Syrian Bank, it was dishonoured for want of sufficient funds. First respondent sent Ext.P4 notice demanding the amount covered by Ext.P1. Petitioner, instead of paying the amount, sent Ext.P6 reply disputing the liability and thereby committed the offence under Section 138 of N.I.Act. Learned counsel appearing for petitioner was heard. Petitioner pleaded not guilty. His case was one of total denial. First respondent was examined as PW1 and Exts.P1 to P6 were marked on his side. Petitioner did not adduce any evidence. 2. Learned Magistrate, on the evidence, found the CRRP 3507/2008 2 petitioner guilty. He was sentenced to simple imprisonment for one month and a compensation of Rs.92,000/- and in default, simple imprisonment for four months. Petitioner challenged the conviction and sentence before Sessions Judge, Ernakulam in Crl.A.71 of 2008. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner was heard. The argument of learned counsel is that there is no notice as provided under Section 138(b) of N.I.Act and for that sole reason, the conviction is bad. The argument is built on the basis that Ext.P4 notice does not contain the number of the cheque or the number of the account in which the cheque was issued and therefore it is not a valid notice. Learned counsel also pointed out that even in the complaint, first respondent did not plead the details of the cheque and therefore courts below should not have convicted the petitioner. 4. On going through the judgments of courts below, I do not find any reason to interfere with the appreciation of evidence. Evidence of PW1 establishes that Ext.P1 cheque was issued by CRRP 3507/2008 3 petitioner towards repayment of Rs.92,000/- borrowed earlier. Evidence also establish that cheque was dishonoured for want of sufficient funds and within the statutory period, Ext.P4 notice was sent to petitioner, which was received by him under Ext.P5 acknowledgment card. The only question is whether Ext.P4 is a notice satisfying the provisions of Section 138(1)(b) of N.I.Act. 5. Though learned counsel argued that as the cheque number and the account number is not mentioned in Ext.P4 and so, it is not a valid notice, Section 138(b) only provides for a written demand by the payee to the drawer of the cheque to pay the amount covered by the dishonoured cheque. Though the number of the cheque or the number of the account was not mentioned in Ext.P4, the date of cheque and the amount covered by the cheque is mentioned. Case of petitioner could have been appreciated if in Ext.P6 reply, petitioner had contended that he had issued several cheques and as the number of the cheque is not mentioned, petitioner is not in a position to pay that amount. On the other hand, Ext.P6 reply does not disclose any such defence. It is clear from Ext.P6 reply itself that petitioner is aware of the demand made by first respondent in Ext.P4. Under Ext.P4, first respondent demanded the petitioner to pay amount CRRP 3507/2008 4 of Rs.92,000/- covered under the dishonoured cheque dated 25.9.2006 which is Ext.P1 cheque. Even if the number of the cheque and the account of revision petitioner is not mentioned in the complaint, along with the complaint, the dishonoured cheque was produced and it should be treated and read as part of the complaint. Therefore I cannot agree with the argument of learned counsel that Ext.P4 notice does not satisfy the conditions provided under Section 138(b) of N.I.Act. The conviction of petitioner for the offence under Section 138 of the N.I.Act is perfectly legal. 6. Then the only question is with regard to sentence. Learned Magistrate sentenced petitioner to simple imprisonment for one month and it was confirmed by learned Sessions Judge. Interest of justice will be met if the sentence is modified to imprisonment till rising of court and a fine. So long as the sentence is not to be varied or modified as against the interest of first respondent, it is not necessary to issue notice to him. 7. Revision petition is allowed in part. Conviction of petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a fine of Rs.25,000/- and in CRRP 3507/2008 5 default, simple imprisonment for two months. On realisation of fine, Rs.92,000/- to be paid to first respondent as compensation. Petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before the learned Magistrate on the expiry of three months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-