IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.MC.No. 3155 of 2006() ------------------------- ST.853/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... PETITIONER(S): ACCUSED ----------------------- KATTUMUNDA ARAMUGHAN, AGED 53 YEARS, S/O. KELU, PARTNER, MALABAR OXYGEN COMPANY, P.O.OTHUKUNGAL, PUTHUR AMSOM DESOM, MALAPPURAM. BY ADVs. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------- 1. N.C.SUDHEESH KUMAR, AGED 33 YEARS, S/O. KONANCHEERI CHEROOTH RAVUNNYKUTTY NAIR, P.O.THENHIPALAM, THIROORANGADI TALUK, MALABAR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJAD ALI SRI.K.P.SUDHEER FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: cRL.m.c. 3155/2006 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1 : TRUE COPY OF THE PLAINT IN O.S.NO. 52/2006 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PARAPPANAGADI AGAINST THE 1ST RESPONDENT ANNEXURE A2 : TRUE COPY OF THE LAWYER NOTICE DATED 16.2.2006 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. ANNEXURE A3 : CERTIFIED COPY OF THE COMPLAINT IN S.T.NO. 853/2006 FILED BY THE 1ST RESPONDENT BEFORE THE JFCM, PARAPPANAGADI. //TRUE COPY// P.A. TO JUDGE CRL.M.C. 3155/2006 ORDER ON CRL.M.A.No. 5414/2006 IN CRL.M.C. 3155/2006 DISMISSED. SD/- M.N. KRISHNAN, JUDGE 11.2.2009 //TRUE COPY// P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 3155 OF 2006 --------------------------------- Dated this the 11th day of February, 2009 O R D E R This petition is filed to quash Annexure A-3 complaint in the interest of justice. The prosecution under Section 138 of the Negotiable Instruments Act alleging that the accused in discharge of the liability had issued a cheque for Rs. 2,00,000/- which when presented for encashment returned with an endorsement of insufficiency of funds and that the amount has not been paid and so the prosecution. 2. The learned counsel for the petitioner contends that the whole proceedings is vitiated on account of the statutory noncompliance contemplated under Section 138(b) of the Negotiable Instruments Act. Under Section 138(b) of the Negotiable Instruments Act held that: “the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid”. Crl.M.C.No. 3155/2006 -2- So the underlining argument is that the statute commands a demand for payment of the amount. I had perused the notice issued which is marked as Annexure A2. A reading of the said lawyer notice would show that just an intimation has been given to the effect that the cheque for Rs. 2,00,000/- which when presented has been dishonoured for want of funds. It is further stated that “my client, Sri.N.C. Sudheesh Kumar has instructed me to issue this notice to inform you of the fact”. So what is sought to be conveyed is only regarding the dishonour of the cheque. So there is absolutely statutory noncompliance. This position has been considered by the apex court in the decision reported in Rahul Builders v. Arihant Fertilizers & Chemicals [2007 (4) KLT 977 (SC)] wherein the apex court held that: “Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of S. 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso(b) appended to S. 138 of the Act, the complaint petition would not be maintainable”. Crl.M.C.No. 3155/2006 -3- In the light of this pronouncement, it is explicitly clear that there is noncompliance of the statutory mandate and a complaint is not maintainable and therefore it is liable to be quashed. Therefore under Section 482 of the Crl.P.C, the proceedings before the Judicial First Class Magistrate Court in S.T.No. 853/2006 is quashed. M.N. KRISHNAN,JUDGE vkm