IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 251 of 2003() --------------------------------- CC.1599/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA ................................................................... APPELLANT(S): --------------------- M/S.UNIPACK (INDIA) PVT.LTD., BUILDING NO.5/577, DEVELOPMENT AREA, EDAYAR, BINANIPURAM, KOCHI, REP.BY ITS MANAGING DIRECTOR, K.C.KURIAKOSE. BY ADV. SRI.ALEXANDER PETER RESPONDENT(S): ------------------------- 1. RADHAKRISHNAN, PROPRIETOR, M/S.POPY INDUSTRIES, VAIKOM, RESIDING AT PANTHULMAMCHUVADU, HOUSE NO.XVII/125, CHALAPPARAMBU, VAIKOM, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.C.C.THOMAS, SENIOR ADVOCATE FOR R1 SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.251 OF 2003 -------------------------- Dated this the 19th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal in C.C.1599/1998 of the Judicial First Class Magistrate Court II, Aluva. It was a case u/s.138 of Negotiable Instruments Act. According to the complainant, the accused had purchased Polythene Printed Pouches worth Rs.15,000/- and towards the discharge of the liability had issued a cheque. When it was presented for encashment, it returned with `insufficiency of funds' and thereafter notice was issued and prosecution was launched. The court below answered the question of liability and issuance of cheque towards the discharge of liability in favour of the complainant. But the court held that the notice is not sent within the statutory period and therefore acquitted the accused. It is against that decision the complainant has come up in appeal. The points that arise for determination in the appeal are, CRL.A.No.251 OF 2003 2 1. Whether the court below was correct in holding that the dishonour came to the knowledge of the complainant on 27.10.1997. 2. Is there anything to interfere with the decision rendered by the court below. 2. Point Nos.1 and 2 :- It is the case of the prosecution as is revealed from the complaint that when the cheque was presented for encashment it got dishonoured and the intimation regarding the dishonour was brought to the knowledge of the complainant on 10.11.1997. The following dates are relevant for determining the question correctly. The cheque is dated 15.5.1997 which is marked as Ext.P2. Ext.P4 is the return memo alleged to be sent by State Bank of Travancore, Vaikom and it bears the date as 27.10.1997. The notice is issued on 22.11.1997. Under Section 138(b) of Negotiable Instruments Act, the complainant has to give a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the bank regarding the return of the cheque, as unpaid. CRL.A.No.251 OF 2003 3 So the statutory mandate is to the effect that notice has to be issued within a time frame of 15 days from the date of the information received by the complainant from the bank. If 27.10.1997 is the date of intimation, as the notice is issued only on 22.11.1997 and it will be beyond the statutory limit of 15 days and therefore it would be fatal to the prosecution. But as alleged by the complainant if the date is 10.11.1997, as the notice is issued on 22.11.1997, it will be perfectly within the time limit prescribed by law. Unfortunately, we are only having Ext.P4, which shows the date as 27.10.1997. I had perused the cheque and there is a seal of State Bank of India dated 31.10.1997 in that cheque. So necessarily and naturally the facts should not have been intimated on 27.10.1997. Further, what is produced is the intimation given by the Catholic Syrian Bank, Vaikom, to State Bank of Travancore, Vaikom. But the complainant has presented the cheque for encashment only before State Bank of India, Aluva Branch. So necessarily it must be State Bank of India, Aluva Branch that has to intimate him about the CRL.A.No.251 OF 2003 4 dishonour. Since no documents are forthcoming and available now, it is desirable an opportunity is given to prove the exact date of intimation given to the complainant regarding the dishonour of the cheque. For that purpose, the parties are at liberty to produce further documentary as well as oral evidence in support of their contentions. Therefore, the appeal is allowed and the order of acquittal passed by the learned Magistrate is set aside and the matter is remitted back to the court below for fresh consideration with respect to the date of receipt of information regarding the dishonour of the cheque. For that purpose, parties are permitted to adduce both documentary and oral evidence and thereafter the court can dispose of the matter in accordance with law. The parties are directed to appear before the court below on 6.8.2009. M.N.KRISHNAN, JUDGE ami.