IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 CRL.A.No. 1135 of 2003() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.77/2003 DATED 13/06/2003 CC.233/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... APPELLANT/COMPLAINANT ---------------------------------------- N.G. MANI, S/O. GOVINDAN, AGED 45 YEARS, NEDUMPALLIL HOUSE, KALLAR P.O., PARATHODU VILLAGE, IDUKKI BY ADV. MR.A.T.ANILKUMAR RESPONDENTS/ACCUSED ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. ABDUL K.NAZAR, H.NO. (BLOCK NO. 397) TOOKUPALAM KARA, KARUNAPURAM, UDUMPANCHOLA TALUK. R1 BY PUBLIC PROSECUTOR MR.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1135 OF 2009 = = = = = = = = = = = = = = = Dated this the 4th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.233/00 of the Judicial First Class Magistrate, Nedumkandam. The brief facts necessary are as follows. It is the case of the complainant that the accused had borrowed a sum of Rs.25,000/- and towards the discharge of the liability had issued a cheque dated 20.12.00 which on presentation before State Bank of Travancore, at Thookkupalam got dishonoured. Thereafter notice was issued and action was initiated. The Court below found in favour of the execution of the cheque as well as the dishonour but dismissed the complaint on two grounds, namely, (1) that it is doubtful whether a notice had been sent in time after the dishonour and (2) notice issued is defective so as to cause violation of the statutory mandate. The Court therefore found against the complainant and rejected the case. It is against that decision Crl.A. 1135 OF 2003 -2- the complainant has come up in appeal. The point that arises for determination in the appeal are (1) Whether the Court below was right in acquitting the accused (2) Whether the Court below was justified in holding that the notice is not proper or the prosecution is barred. So far as the execution of the cheque and the borrowal of the amount is concerned the evidence has been appreciated by the Court below and it had arrived at a decision that the accused had borrowed a sum and had issued a cheque towards the discharge of the liability which when presented for encashment had returned for insufficiency of funds. I do not find any materials to arrive at a different decision on those points. 2. The crucial question is regarding the limitation and the sufficiency of notice. U/s 138(b) of the N.I.Act notice in writing after the dishonour has to be given within 15 days of the receipt of information by the person from the Bank regarding the return of the cheque as unpaid. Ext.P2 is the memo showing cheque returned and it is dated 27.1.00. There is absolutely no necessity to disbelieve that Crl.A. 1135 OF 2003 -3- endorsement and therefore the notice is issued within 15 days from 27.1.00 and there is a valid compliance. It is seen that the notice is issued on 2.12.00 and therefore the notice is issued within time and therefore the said finding of the Court below is erroneous and it is liable to be reversed. 3. Now comes the question of sufficiency of notice. The Court below found from the notice that, as per the description in the notice the cheque is drawn on account No.B- 3979 of State Bank of Travancore, Thookkupalam. In fact this Thookkupalam is in Idukki District. Just because by mistake it is noted as Thodupuzha whether it will go to the root of the prosecution is the question to be considered. The inaccuracy of the notice had been a subject matter of various decisions and decisions are to the effect that the number of the cheque though wrongly shown will not make a notice ipso facto invalid in law and in a latest decision the Apex Court had gone to the extend of holding that if a person wants to deny the receipt of a notice and wants to take up a contention on the basis of the same there is nothing prohibiting him to deposit the amount Crl.A. 1135 OF 2003 -4- on the first date of his appearance and even canvass for the position that the prosecution cannot be initiated. The intention behind the statute is that a person who had borrowed the amount is given an intimation regarding the dishonour and further he is given an opportunity to correct the mistake committed by him by making the payment within the period of 15 days so that he can avoid a criminal prosecution which may put him in jail. Now, the account number is there, the name of the drawer of the cheque is there and the person who received the notice is certain and that he had issued the cheque on his account and therefore a clerical mistake committed by a lawyer at the time of issuance of a notice cannot be considered as fatal to the prosecution itself. The materials, viz., the date, name of the drawer, the amount etc. are properly shown and the description in the notice makes it very clear how the amount has been borrowed and how it has been dishonoured. I feel that the Court below was too technical to hold that a typing mistake committed or a mistake committed by a lawyer is so fatal to the prosecution. I hold Crl.A. 1135 OF 2003 -5- that the notice is issued within the statutory time and there is a proper notice. A cumulative effect of all these discussions is to the effect that the accused had borrowed a sum, issued a cheque towards the discharge of the liability, a notice had been sent in time and it is a proper notice and in spite of the same the accused had not paid back the amount and therefore he is found guilty u/s 138 of the N.I.Act. Therefore I set aside the judgment of the trial court and found the accused guilty u/s 138 of the Act. 4. The next question is regarding the punishment or sentence to be imposed. I feel leniency can be shown and it can be done by imposing a fine especially in the back drop of the amendment to the N.I.Act which permits the Court to award a fine of double the amount irrespective of the jurisdiction of the Court. Therefore the Crl.Appeal is disposed of as follows. (1) The judgment of the trial court is set aside (2) The accused is found guilty u/s 138 of the N.I.Act and is convicted thereunder. He is sentenced to pay a fine of Crl.A. 1135 OF 2003 -6- Rs.25,000/- and on realisation, it shall be disbursed to the complainant. In default of the fine amount he shall undergo simple imprisonment for a period of six weeks. The Court below shall execute the sentence if the amount is not paid on or before 16.8.2009. M.N. KRISHNAN, JUDGE. ul/-