IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1541 of 2006() ------------------------------ CRA.179/2002 of III ADDL.SESSIONS COURT, KOLLAM CC.767/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- D. MURUKAN, S/O. DHARMAN, KOONANTAZHATHU VEEDU, POZHIKKARA CHERRY, PARAVOOR, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. G. SREEKUMARI, D/O. GOMATHY AMMA, AMBADIYIL VEEDU, POZHIKKARA CHERRY, PARAVOOR VILLAGE, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.VENUGOPALAN NAIR FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.R.P. No.1541 OF 2006 ===================== Dated this the 16th day of December 2008 O R D E R This revision petition is preferred against the judgment of the III Addl.District Court, Kollam in Crl.A.No.179 of 2002. The said appeal was preferred against the conviction and sentence passed by the Judl. I Class Magistrate Court, Paravoor in CC No.767 of 1998. By the said judgment, the trial court convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.1, 50,000/-. In appeal, the appellate court confirmed the conviction and sentence and dismissed the appeal. It is against that decision, the present revision is filed. 2. Learned counsel for the revision petitioner strongly canvasses only on one point, viz; that there is a violation of the statutory mandate under Section 138(b) of the NI Act and therefore the whole prosecution has to fail. Under Section 138(b) of the NI Act the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, CRL.R.P.No.1541/2006 -:2:- within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. So the statutory requirement is that when a cheque is dishonoured and intimation or information regarding the dishonour of the cheque comes to the knowledge of the person, who presents the cheque he is bound to issue a notice within 15 days from such knowledge or information. What is contended before me is that the cheque was presented for encashment on 1.9.1998 and there is no evidence to show when really the complainant got the information of dishonour of the cheque. Learned counsel for the revision petitioner would submit that when the cheque presented on 1.9.1998 and it was returned, the complainant has to come to know about the dishonour of the cheque on the very same date and therefore the notice issued on 26.9.1998 is much beyond the prescribed period under the statute and therefore the prosecution is vitiated. He had brought to my notice the notice received by him where there is an averment to the effect that the information was received by the complainant only on 17.9.1998 or 19.9.1998. But it is a matter that has to be proved because it goes into the root of the very prosecution. Therefore on that short point alone, the matter requires reconsideration. So the conviction and sentence passed by the trial court and affirmed by the appellate court are set aside and the matter is remitted back to the trial court for the purpose of CRL.R.P.No.1541/2006 -:3:- consideration regarding the statutory compliance under Section 138(b) by permitting the complainant as well as the accused to let in evidence in accordance with law. The matter be disposed of after hearing both parties. Parties are directed to appear before the trial court on 21.1.2009. Crl.R.P. is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-