Allowed

S.R.Abhilash v. Geetha S. Nair

Kerala HC23 Feb 2018CRL.A/461/2007

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal filed by the complainant against the acquittal of the accused. The trial court had acquitted solely on the ground that the statutory notice was time-barred, ignoring when the bank intimation was actually received. The High Court held the notice was valid and convicted the accused under Section 138 of the NI Act, granting interim jail and compensation.

What did the court decide?

Accused convicted under Section 138 NI Act; sentenced to imprisonment till rising of court and directed to pay Rs.75,000 compensation.

S.R.Abhilash Vs Geetha S. Nair — Cheque Dishonour | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

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FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939

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CRL.A.No. 461 of 2007

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Crl.L.P.NO.76/2007 of HIGH COURT OF KERALA DATED 09-02-2007

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C.C.NO.31/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT- IV (PRINCIPAL MUNSIFF), NEYYATTINKARA DATED 11-01-2007

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APPELLANT/COMPLAINANT

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S.R.ABHILASH, S/O.RAM MOHAN, T.C.17/1430, 'SARAS', CHENKALLOOR LANE, POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DIST.

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BY ADV.SRI.R.GOPAN

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RESPONDENT/ACCUSED AND STATE:

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1. GEETHA S NAIR, D/O.SAVITHRY AMMA,

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RESIDING AT GEETHANJALI, T.C.NO.28/869,

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PUNNAPURAM KUNCHUVEEDU LANE,

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THIRUVANANTHAPURAM DIST.

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2. STATE OF KERALA,

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REPRESENTED BY PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. SRI.BLAZE K.JOSE

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R2 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.SUDHEENDRA KUMAR, J.

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----------------------------------------Crl.Appeal No.461 of 2007

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Dated this the 23^rd day of February, 2018

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J U D G M E N T

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The appellant is the complainant in C.C.No.31 of 2005 on the files of the court below.

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The appellant filed a complaint against the first respondent herein before the court below alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I.Act' for short). After the trial, the court below acquitted the first respondent under Section 255(1) Cr.P.C. Aggrieved by the judgment and order of acquittal, this appeal has been filed after obtaining Special Leave from this Court.

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The case of the appellant is that, the accused borrowed an amount of Rs.75,000/- from the appellant and towards the discharge of the said liability, the accused issued Ext.P1 cheque in favour of the appellant.

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Crl.Appeal No.461 of 2007 : 2 :

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The appellant stated that Ext.P1 cheque was dishonoured due to insufficiency of funds when presented for encashment. The appellant received intimation from the bank with regard to the dishonour of the cheque only on 4.1.2003. The statutory notice was issued on 6.1.2003.

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The court below, after evaluating the evidence of PW1, found that Ext.P1 cheque was executed by the accused as contemplated under Section 138 of the N.I. Act. However, the court below found that since Ext.P3 memo was dated 21.12.2002, the notice issued was time barred. Ext.P3 is the memo sent by the Dhanalakshmi Bank, Manacaud to the Canara Bank, Trivandrum on 21.12.2002. Ext.P8 would show that the same was received by Canara Bank, Trivandrum on the same day. The Canara Bank, Trivandrum on the same day sent Ext.P8 to the Canara Bank, Neyyattinkara, by Registered Post. Therefore, it is clear that the intimation could be received by the appellant only after the receipt of Ext.P8 by the Neyyattinkara branch. The appellant contended in the complaint as well as in the evidence that the

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Crl.Appeal No.461 of 2007 : 3 :

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intimation was received by the appellant only on 4.1.2003. The appellant received Ext.P7 along with Exts.P8 and P3 from the Canara Bank, Neyyattinkara. The intimation sent on 21.12.2002 by the Canara Bank, Trivandrum to the Canara Bank, Neyyattinkara could be received by the Canara Bank, Neyyattinkara only on or after 23.12.2002 as 22.12.2002 was a Sunday. Therefore, the intimation could be given to the appellant only on or after 23.12.2002. Even if it is assumed that the information was received by the appellant on 23.12.2002 and not on 4.1.2003, the notice sent on 6.1.2003 was within the period of limitation. Section 138 of the N.I. Act provided that the demand for the payment of the cheque amount must be made by giving a notice in writing within a period of fifteen days till the amendment by Act 55 of 2002, as per which, the period had been extended by thirty days w.e.f. 6.2.2003. However, during the relevant period, the notice should have been issued within fifteen days of receipt of information by him from the Bank. The crucial date is the date of information and not the date shown in the

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Crl.Appeal No.461 of 2007 : 4 :

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memo of the bank. The Apex Court in Munoth Investments Ltd. v. Puttukola Properties Ltd. and Another [(2001) 6 SCC 582] held that the fifteen days are to be counted from the date of receipt of information regarding the return of the cheque as unpaid. However, the court below had erroneously taken the date of Ext.P3 memo as the date of receipt of information by the appellant even without considering the aspects discussed above. In view of the above reason, the finding by the trial court that the demand notice was time barred, cannot be sustained. Even though the accused had taken a contention that the accused did not receive the notice, the court below correctly found that the said contention of the accused could not be sustained.

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I have gone through the evidence of PW1 and I am fully convinced that PW1 had clearly explained as to how Ext.P1 cheque happened to be in possession of PW1. The contention of the accused was that the amount was actually given to one Santhosh by the complainant towards the cost of production of a serial.

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Crl.Appeal No.461 of 2007 : 5 :

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During her examination under Section 313 Cr.P.C. also, the accused had taken a contention that the amount was given by the complainant to one Santhosh and at that time, the accused had given a cheque to the complainant for and on behalf of the said Santhosh. She also lodged a complaint before the Poojappura police station as the cheque was not given back by the complainant even after the discharge of the debt. However, apart from the above said contentions, there is absolutely no material before the court to substantiate the same by the yardstick of preponderance of probabilities and possibilities. It is true that it is not necessary that the accused must adduce evidence to prove her case. It is sufficient if the accused is able to prove her case by the yardstick of preponderance of probabilities and possibilities from the materials produced by the prosecution itself. However, in this case, there is absolutely no material before the court to probabilise the above said contention of the accused. Having gone through the relevant inputs, I am satisfied that the evidence of PW1 proved that the accused executed

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Crl.Appeal No.461 of 2007 : 6 :

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Ext.P1 cheque as contemplated under Section 138 of the N.I. Act. The court below acquitted the accused only on the ground that the notice was time barred. I have already found that the notice was issued within the period stipulated by the statute. Having gone through the relevant inputs, I am satisfied that the complainant could succeed in establishing that the accused committed the offence under Section 138 of the N.I. Act. Therefore, the order of acquittal passed by the court below cannot be sustained. Consequently, I set aside the same. I also find the accused guilty for the offence under Section 138 of the N.I. Act. Therefore, she is convicted thereunder. The learned counsel for the accused has requested for leniency in the matter of sentence stating that the accused is a woman, who is presently aged 55 years, having no source of income. The amount covered by Ext.P1 cheque is Rs.75,000/-.

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Considering the facts and circumstances of the case, including the amount covered by Ext.P1 cheque, I am of the view that the accused can be sentenced to imprisonment till the rising of the court and a

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Crl.Appeal No.461 of 2007 : 7 :

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compensation of Rs.75,000/- to the complainant under Section 357(3) of Cr.P.C. with a default clause for Simple Imprisonment for one month, to meet the ends of justice. It is ordered accordingly.

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Sd/- B.SUDHEENDRA KUMAR JUDGE.

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Bb/24/2/2018

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[True copy]

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P.A to Judge

S.R.Abhilash v. Geetha S. Nair

Case brief

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S.R.Abhilash v. Geetha S. Nair

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