IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 1686 of 2003() -------------------------------- (AGAINST THE ORDER IN CRLP.377/2003 Dated 24/09/2003 ST.711/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR) .................... APPELLANT(S): COMPLAINANT: --------------------------------------------- K. NEELAKANTAN, UPASANA, IRUMPLIYAM, VALANCHERRY P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): ACCUSED & STATE: ------------------------------------------------------ 1. MOHAMMEDALI "PARAPPURATH", S/O. MOIDEENKUTTY HAJI, CHERUKUDANGAD, P.O. PURUTHUR, PALAKKAD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SANTHEEP ANKARATH FOR R1 PUBLIC PROSECUTOR MR. THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: LN M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 1686 OF 2003 ------------------------------------- Dated this the 25th day of June, 2009. J U D G M E N T This is an appeal preferred against the dismissal of a complaint on the basis of the principle laid down in 1996 (2) K.L.T 886. The present case is one for prosecuting the accused under section 138 of the N.I.Act. On 20.11.1996 a notice had been issued to the accused demanding payment of Rs. 15000/- plus interest plus notice expenses and in the event of failure is threatened with civil and criminal prosecution. The learned Magistrate had taken note of the decision in 1996 (2) K.L.T 886 which is the decision of the Culcutta High Court in Gopadevi Vs. Sujithpole wherein the Hon'ble High Court of Culcutta held that notice of demand must be of the cheque amount and if a bigger or smaller amount is claimed in the notice, it is not sufficient. This decision had been considered by a Division Bench of this court later in the decision reported in 1997 C.R.A.No. 1686/03 2 (2) K.L.T 539 Kunjan Panikker Vs. Christhudas. In the Calcutt case the cheque involved was for Rs. 5,79,000/- whereas demand was made for sum of Rs. 6,50,000/-. Then the Hon'b Judge held that it amounts to improper notice as comtemplate under the provisions of the Negotiable Instruments Act for th reason the expression used in the Negotiable Instruments Ac is " for the said amount". Now the Division Bench of this cou decision referred to above had very clearly held that wher however there was such demand, about which there ca possibly we no vagueness or ambiguity, but at the same tim there was also a claim in addition by way of interest and cos the notice will neverthless be one demanding the payment o the "said amount", the claim in other counts notwithstanding Those additional claims are indeed severable that could b treated as surplusage and will not affect the validity of th notice, whose object is to alert the drawer of the cheque abou the dishonour and give an opportunity to make payment withi the stipulated time at the risk of his having to face prosecution. It is very clearly stated in the notice that th C.R.A.No. 1686/03 3 amount due under the cheque is Rs. 15,000/- but on additional claims such as interest and cost of notice ar claimed. It will not as laid down by the Division Bench of th court be a non-compliance of the Statutory requirements unde section 138 of the Negotiable Instruments Act. The said notic is perfect and action will lie. Therefore, the dismissal of th complaint by the learned Magistrate is not proper and it liable to be interfered with I do so. In the result, Appeal is allowed and dismissal of th complaint by the learned Magistrate is set aside and he directed to restore the file and dispose of the matter i accordance with law after affording opportunities to the partie to put forward their contentions. The complainant is directe to appear before the court below on 6.8.2009 and take step for issuance of summons to the accused,as his appearance necessary to proceed further in the case. M.N.KRISHNAN, JUDG ln.