IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 CRL.A.No. 586 of 2005 ------------------------- (CC.811/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM AGAINST THE JUDGEMENT/ORDER IN CRLP.198/2005 Dated 10/03/2005) .................... APPELLANT(S): ----------------- RAJENDRAN PILLAI, THAMBRANTAZHIKATHU THEKKATHIL, KARICODE, MANGAD P.O., KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT(S)/ACCUSED & STATE: ----------------------------------------- 1. V.PRABHAKARAN, SHINE VIHAR, KARICODE, T.K.M.COLLEGE P.O., KOLLAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JOHNSON GOMEZ FOR R1 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 586 of 2005 --------------------------------------------- Dated this the 6th day of April, 2010 J U D G M E N T This appeal is at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') as he is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Code of Criminal Procedure (for short 'the Cr.P.C.'). 2. The case of the appellant is that the accused borrowed an amount of Rs.50,000/- from him and issued a cheque to the complainant towards the discharge of the said loan and when the said cheque was presented for encashment, it was dishonoured as there was no sufficient fund in the account maintained by the accused. Consequently, the complainant caused to send a lawyer notice informing the accused regarding the dishonour of the cheque and demanding him to pay Crl.A.NO. 586 of 2005 :-2-: the amount covered by the dishonoured cheque. According to the complainant, in spite of the receipt of the lawyer notice, no amount was paid and hence, he approached the court below by filing a proper complaint. But, according to the complainant, the court, on an erroneous application of law, found that the complainant failed to establish the case and the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. Therefore, this appeal. 3. I have heard Sri.S.Santhosh Kumar, learned counsel appearing for the appellant and also Mr.Johnson Gomez, counsel appearing for the first respondent. I have also perused the impugned judgment and other materials available on record. 4. In order to substantiate the allegation in the complaint, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents. From the side of the defence, the accused produced one witness, viz., DW1 and produced a document Ext.D1. The accused took a plea Crl.A.NO. 586 of 2005 :-3-: that Ext.P1 cheque was issued by the accused for the chitty transaction between DW1, who is none other than the wife of the accused and the father of the complainant. According to the accused, the cheque in question was issued to the father of the complainant. From the impugned order, it appears that the trial court had not gone to the details of allegations of the complainant and the pleadings raised by the accused. Based upon the rival pleadings and materials on record, the trial court considered three points for its determination. Out of the three points, the first point is whether the accused has issued the cheque to the complainant in discharge of a legally enforceable debt or liability. The second point is whether the accused has committed an offence under Section 138 of the N.I.Act, if so, what is the proper punishment. But, in para 7 of the judgment, the learned Magistrate found that the accused received the notice on 15.1.1999 and the complaint has been filed on 6.2.1999 and thus, according to the learned Crl.A.NO. 586 of 2005 :-4-: Magistrate, the complaint was filed after 30 days from the date of actual cause of action in view of Section 138(c) of the N.I.Act. Learned counsel for the appellant submitted that the above finding of the learned Magistrate is diametrically opposed to the facts involved in the case and the learned Magistrate erroneously found that the complaint is filed beyond the period fixed by the statute. Learned counsel for the respondent submitted that the learned Magistrate has not considered the merits of the plea raised by the defence. 5. I have carefully considered the arguments advanced by learned counsel for the appellant as well as the first respondent. 6. In view of clause (b) of the proviso to Section 138 of the N.I.Act, the payee or the holder in due course of the cheque, has to make a demand for the payment of the amount by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him Crl.A.NO. 586 of 2005 :-5-: from the bank regarding the return of the cheque in question. Clause (c) of proviso to Section 138 of the N.I.Act further says that the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice. In the present case, as borne out from the judgment itself, the accused received the demand notice on 15.1.1999 and the complainant approached the court and filed the complaint on 6.2.1999 and the above two facts are beyond dispute. If that be so, the finding of the learned Magistrate that the complaint was filed after 30 days from the date of cause of action in view of Section 138(c) of the N.I.Act is absolutely incorrect and illegal. As I indicated earlier and as submitted by the counsel for the respondents, the trial court, without going into the further details and on merit of the case, found that the prosecution has not succeeded in proving the offence. Therefore, the matter requires remand to the trial Crl.A.NO. 586 of 2005 :-6-: court for fresh consideration of the entire issue after affording an opportunity of being heard to both the parties. In the result, this Criminal Appeal is disposed of setting aside the judgment dated 31.12.2004 in C.C.No.811 of 2000 of the court of the Judicial First Class Magistrate-II, Kollam and the matter is remanded back to the trial court for fresh consideration of the points formulated by the court below in the impugned judgment and to have a decision on merit. As the case pertains to the year 2000, the court below is directed to dispose of the same as expeditiously as possible, at any rate within six months from the date of receipt of a copy of this judgment which shall be produced by the complainant before the court below on 6.5.2010 on which date the parties are also directed to appear before the court below. V.K.Mohanan, Judge MBS/ Crl.A.NO. 586 of 2005 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.A.NO. 586 of 2005 :-8-: DATED: -2-2010 Crl.A.NO. 586 of 2005 :-9-: