IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 CRL.A.No. 42 of 2004() ---------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.614/2003 Dated 12/12/2003 CC.1071/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ M/S.SHERBROOKE ALUMINIUM PRODUCTS, KURISUPALLY ROAD, KOCHI-15, REP. BY PARTNER MR.K.K.CHERIAN BY ADV. SRI.V.EAPEN MATHAI SRI.MATHAI EAPPEN VETTATH RESPONDENT(S): ACCUSED ---------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M/S.M.R.ENGINEERS & CONTRACTORS PVT.LTD. P.B.NO.1122, KOCHY-II, REP. BY ITS MANAGING DIRECTOR, MR.N.RAMAKRISHNAN 3. MR.M.RAMAKRISHNAN, MANAGING DIRECTOR OF THE COMPANY. 4. MR.REJI THOMAS, DIRECTOR OF THE ABOVE COMPANY. 5. MR.PRADEEP NARAYANAN, DIRECTOR OF THE ABOVE COMPANY. 6. MR.S.MURALEEDHARAN, DIRECTOR OF THE ABOVE COMPANY. ADV. SRI.SHAJI P.CHALY FOR R2 TO 6 SRI.JANEEVAN JOHN FOR R2 TO R6 PUBLIC PROSECUTOR, SRI PUZHEKKARA MUHAMMED FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON 09/12/2010 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No: 42 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 1071 of 1999 on the file of Addl. Chief Judicial Magistrate Court, Ernakulam. Respondents 2 to 6 herein are the accused numbers 1 to 5 in that case which was filed by the complainant alleging the commision of an offence under Section 138 of N. I. Act. 2. The case of the complainant is briefly as follows. The complainant is a partnership firm dealing with aluminium fabrication works. The first accused is a private limited company ordered various aluminium fabrication works and that work was duly completed by the complainant firm. Towards the part payment of the liability the accused company issued Ext.P1 cheque for Rs.5,00,000/- drawn on Bank of India, Ernakulam branch. When that cheque was presented Crl.Appeal No: 42 of 2004 :2: through Syndicate Bank, Perumanoor branch on 20.4.1999, it was returned with a memo dated 21.4.1999 of Bank of India, Ernakulam branch for the reason 'payment stopped by the drawer'. On enquiry, it was understood that there was no sufficient funds in the account of the accused to honour the cheque. Thereupon the complainant firm sent notices to respondents 2 to 4 (accused no.2 being the Managing Director representing the first accused). The notices were accepted by them. But they did not send any reply and they have not paid any amount. Accused no.2 is the Managing Director of first accused company and accused nos. 3 and 4 are the Directors in charge and responsible to the first accused company. All the accused are liable under Sec.138 of N.I. Act. 3. In the Magistrate Court on the side of the complainant PW1 and 2 were examined and Exts.P1 to P8 were marked. No evidence was adduced from the defence side. The learned Magistrate on considering the evidence found that Ext.P1 Crl.Appeal No: 42 of 2004 :3: cheque was issued for the discharge of a legally enforceable debt and that cheque was dishonoured on 21.4.1999 for insufficiency of funds in the account of the accused also stood proved. But the learned Magistrate acquitted the accused under Sec.255(1) of Cr.P.C on the ground that the demand notices were sent only on 10.5.1999, which was not issued within 15 days from the date of information regarding the bouncing of that cheque. Against that judgment of acquittal the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for respondents 2 to 6. 5. The learned counsel for the appellant submitted that Ext.P1 cheque was dishonoured on 21.4.1999 and the intimation to the complainant by the complainant's bank was received only on 28.4.1999 and the lawyer notices to the accused were sent on 10.5.1999 and therefore it is clear that the demand notice was sent by the complainant within 15 days of Crl.Appeal No: 42 of 2004 :4: receipt of intimation regarding the dishonour. The learned counsel for the appellant submitted that PW2, the Senior Manager of the Syndicate Bank, Perumanoor branch produced Ext.P8 certificate and he deposed the fact that Ext.P1 cheque was returned to the complainant firm on 28.4.1999 and the learned Magistrate ought to have accepted that testimony. The learned counsel for the appellant further submitted that when the second accused was questioned Sec.313 Cr.P.C. he had admitted the execution of Ext.P1 cheque and that it was dishonoured. The learned counsel for the appellant submitted that the appellant/complainant has proved all the necessary ingredients of the offence under Sec.138 of N. I. Act and the learned Magistrate ought to have convicted the accused under Sec.138 of N.I. Act and should have imposed suitable punishment. Learned counsel for respondents 2 to 6 supported the judgment of the court below. Crl.Appeal No: 42 of 2004 :5: 6. One of the necessary ingredients to constitute an offence under Sec.138 of N.I. Act is that the payee or holder in due course of the cheque should have issued the notice in writing to the drawer within 15 days (now 30 days) of receipt of information by him from the Bank regarding the return of cheque as unpaid. There is no power to condone the delay in issuing notice as contemplated under Sec.138 of N. I. Act. Sec.146 of N.I. Act, which was inserted by Act 55 of 2002 provides that on production of bankers slip or memo having thereon the official mark denoting the cheque as dishonoured, the Court shall presume the fact of dishonour of cheque unless and until such fact is disproved. In the present case in the complaint, the complainant has not stated the date on which he received the intimation from his bank with regard to the dishonour of the cheque. The complainant has not produced any intimation slip issued from his bank showing the date of intimation received by the complainant. In Ext.P8 certificate Crl.Appeal No: 42 of 2004 :6: dated 3.9.2003, PW2 stated that Ext.P1 cheque was dishonoured on 21.4.1999 by the Bank of India, Ernakulam branch and that dishonoured cheque was returned by the Syndicate Bank, Perumanoor branch to the complainant on 28.4.1999. In Ext.P8 it is further stated that there are original books and records maintained by the bank showing this fact and that records could be produced at any time of demand. Since that documents mentioned in Ext.P8 are not produced before the Court, it is not possible to ascertain as to what is stated by PW2 before the court is true or not. Since the amount involved is Rs.5 lakhs and as there is no much dispute with regard to other aspects of the case, I am of the view that in the interest of justice, an opportunity should be given to the complainant for causing the production of records from the his bank for proving the date of intimation given to him regarding the dishonour of Ext.P1 cheque and for that purpose the case has to be remanded to the court below. Crl.Appeal No: 42 of 2004 :7: 7. Accordingly this appeal is allowed. The judgment in C. C. No. 1071 of 1999 on the file of Additional Chief Judicial Magistrate Court, Ernakulam acquitting the accused under Sec.255(1) Cr.P.C. is set aside and the case is remanded to the Court below for the purpose of giving an opportunity to the complainant to cause production of documents from the concerned bank to prove the date of intimation given to the complainant regarding the dishonour of Ext.P1 cheque. The court below is directed to dispose of the case in accordance with law afresh untrammelled by any observations contained in this judgment. Parties are directed to appear before the Court below on 25.1.2011 for further proceedings. Send back the records to the Court below immediately. M. L. JOSEPH FRANCIS ( Judge) dl/