IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.MC.No. 1689 of 2008() ----------------------------------- C.C.332/2007 OF CHIEF JUDL. MAGISTRATE COURT-VII, ERNAKULAM. .................... PETITIONER/ACCUSED --------------------------------- K.K. NAUSHAD, AGED ABOUT 38 YEARS, DARUL AMAN, KIZHUTHALLY P.O., THAZHE COVVA, KANNUR DISTRICT. BY ADV. MR.P.M.HABEEB RESPONDENT(S): ------------------------ 1. ROYCE KIZHAKOODAN, AGED 27 YEARS, S/O.VARGHESE, PROPRIETOR, K.R. AUTO GLASS HOUSE, JYOTHI COMPLEX, THAMMANAM ROAD, VYTTILA JUNCTION, ERNAKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.K.J. MUHAMMED ANSAR. R1 BY ADV. MR.P.M.MOHAMMED SHIRAZ, SMT.RAJI VINCENT. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1689 OF 2008 =========================== Dated this the 5th day of November,2009 ORDER Petitioner is the accused and first respondent the complainant in C.C.332/2007 on the file of Judicial First Class Magistrate Court-VII, Ernakulam. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A1 complaint and the cognizance taken contending that on the complaint the learned Magistrate should not have taken cognizance of the offence. As petitioner challenged the procedure adopted by the learned Magistrate as well as the correctness of the cognizance taken, entire records were called for from the Magistrate. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. On hearing the counsel, I find it not necessary to deal with the controversies with regard to the procedural aspect followed by the learned Magistrate. 4. As per Annexure A1 complaint a cheque for Rs.1,33,536/- without showing the date of the cheque Crll.M.C.1689/2008 2 was issued by the petitioner towards payment of the amount due to the first respondent and first respondent presented the cheque for encashment from Thazhe Chovva branch of Elayavoor Service Co-operative Bank. The cheque was dishonoured. It was intimated to the first respondent by Vyttila Branch of State Bank of Travancore, where the cheque was presented. On getting intimation dated 3.9.2007, first respondent sent notice dated 6.9.2007 to petitioner under section 138(b) of Negotiable Instruments Act demanding the amount. Though petitioner received the notice, he did not pay the amount and thereby committed the offence. 5. The case of the petitioner is that when the date of the cheque is not mentioned and the cheque is not produced it is not possible to find out whether the cheque was presented within the statutory period or not and on that ground alone the complaint is to be quashed. It is also pointed out that first respondent had originally sent a notice dated 23.7.2007 enclosing a letter received from Vyttila Branch of State Bank of Travancore dated 16.7.2007 demanding the amount covered by the dishonoured cheque as State Bank of Travancore informed him that the cheque was dishonoured by the Elayavoor Service Co-operative Bank on 23.4.2007. The said letter was received by the petitioner. Crll.M.C.1689/2008 3 But on the failure to pay no complaint was lodged based on the said notice, but a second demand was made. It is contended that as commission of offence was completed on the expiry of 15 days from the date of receipt of the notice dated 23.7.2007, the cognizance taken based on the subsequent notice is unsustainable. 6. The records show that the complainant was examined as PW1 and he was cross examined also and it is at that stage petition was filed and the proceedings were stayed. The records contain Ext.D1 and D2 the letters sent by first respondent dated 23.7.2007 demanding the amount covered by the dishonoured cheque stating that by Ext.D2 intimation of Vyttila Branch of State Bank of Travancore the cheque was reportedly dishonoured on 23.4.2007 for insufficient funds. Therefore petitioner has asked to pay that amount immediately. First respondent as PW1 admitted at the time of cross examination that he had sent Ext.D1 letter along with Ext.D2 copy of the letter and Ext.P3 the subsequent notice was sent based on a subsequent intimation from the Bank, without presentation of the cheque once again. 7. The question is whether first respondent is entitled to sent a notice demanding the amount covered by the dishonoured cheque once again after completion of the offence and then lodge a complaint. The position is Crll.M.C.1689/2008 4 squarely covered by the decision of the Apex Court in SIL Import, U.S.A v. Exim Aides Silk Exporters (1999(2) KLT 275). Learned counsel appearing for the first respondent submitted that as held by the Apex Court in S.L.Construction & another v. Alapati Srinivasa Rao(ILR 2009(2) the complaint based on a subsequent demand and its failure is legal. I cannot agree with the submission. When the payee gets intimation from the Bank that the cheque was dishonoured, as provided under section 138(b) of the Negotiable Instruments Act, he has to demand the amount covered by the cheque in writing from the drawer of the cheque. Ext.D1 is the said demand made on 23.7.2007. 8. As provided under section 138(c)of Negotiable Instruments Act, the drawer of the cheque has to make the payment as demanded, within fifteen days of receipt of the notice. As provided under section 142(b),no complaint shall be made after the expiry of one month from the date on which the cause of action arises under clause (c) of the proviso to Section 138. After the expiry of thirty days from the date of failure of the petitioner to pay the amount as demanded under Ext.D1 , the offence is completed. Thereafter a complaint cannot be filed. 9. The law is settled in SIL Import's ase (supra) as Crll.M.C.1689/2008 5 follows:- “The upshot of the discussion is, on the date when the notice sent by Fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offences completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in S.142 of the Act.” Though learned counsel appearing for first respondent relying on S.L.Constructions case (supra) argued that a complaint filed on the third notice was held valid, facts are different. It is clear that in that case first notice was not produced and it was not proved that it was served on Crll.M.C.1689/2008 6 the drawer. The second notice was proved to be not served on the drawer. Hence on the failure to pay the amount as demanded on the third notice, cause of action has arisen. That is not the case herein. Ext.D1 notice was served on petitioner and on his failure the offence was completed.Ext.P3 notice was sent later after the expiry of the period even for filing a complaint under section 138 and 142 of Negotiable Instruments Act on Ext.D1 notice. Hence even if the trial is to be held in C.C.332/2007, petitioner cannot be convicted for the offence. In such circumstances, the complaint can only be quashed. Petition is allowed. C.C.332/2007 on the file of Judicial First Class Magistrate Court-VII, Ernakulam is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006