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2014 DIGILAW 855 (KER)

PADMAJA v. STATE OF KERALA

2014-10-27

K.RAMAKRISHNAN

body2014
ORDER The accused in CC.No.79/2006 on the file of the Judicial First Class Magistrate Court-I, Attingal, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the complainant against the revision petitioner under Section 138 of the Negotiable Instruments Act (hereinafter called the Act). The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.2 lakhs and in discharge of her liability, she issued Ext.P1 cheque dated 01.10.2005. He presented the cheque for collection and the same was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo dated.06.12.2005 and that was intimated to the complainant by his banker vide Ext.P3 intimation letter. Ext.P4 is the notice issued by the complainant vide Ext.P5 postal receipt intimating the dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgement. She had not paid the amount. So, she had committed the offence punishable under Section 138 of the Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and one witness was examined as PW2 to prove the transaction and Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure (hereinafter called the Code) and she denied all the incriminating circumstances brought against her in the complainant's evidence and she had further stated that while she was in abroad with her husband, a blank signed cheque was handed over to her mother-in-law for the purpose of payment of electricity charges and for maintenance of her house and subsequently, her mother-in-law and brother-in-law had handed over the cheque to the complainant and misusing the cheque, the present complaint has been filed. Exts.D1 and D2 were marked through PW1 on her side in defence. No other evidence was adduced on her side in defence. Exts.D1 and D2 were marked through PW1 on her side in defence. No other evidence was adduced on her side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for 6 months and also to pay fine of Rs. 2 lakhs in default to undergo simple imprisonment for 3 months more. It is further ordered that if the fine amount is realised, the same to be paid to the complainant as compensation under Section 357 (1) (b) of the Code. Aggrieved by the same, the revision petitioner filed Crl. Appeal No.295/2011 before the Sessions Court, Thiruvananthapuram, which was made over to the First Additional Sessions Court, Thiruvananthapuram for disposal. The learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and sentence of fine with further direction to pay the fine as compensation to the complainant with default sentence of two months simple imprisonment imposed by the court below but reduced the substantive imprisonment to till rising of court. This is being challenged by the revision petitioner by filing this revision petition before this court. 4. When the revision came up for hearing for admission, the counsel appearing for the revision petitioner confines the argument regarding the issuance of notice whether it is within time or not so as to challenge the maintainability of the complaint itself under Section 138 of the Act. Considering this fact, this court felt that the revision petition can be disposed of at the admission stage itself after hearing the learned counsel appearing for the revision petitioner and the learned Public Prosecutor appearing for the first respondent and dispensing with notice to the second respondent. 5. The counsel for the revision petitioner submitted that in this case the cheque was dishonoured on 06.12.2005 and the complainant ought to have sent the notice within one month from that day ie., on or before 06.01.2006 and the notice was issued only on 16.01.2006 which is beyond 30 days mentioned in the section. He had relied on the decision in Antony C.L. v. K.A.Anto and Another 2012(3) KHC 887 and another decision in Kamlesh Kumar v. State of Bihar and Another 2013(4) KHC 888 in support of his case. He had relied on the decision in Antony C.L. v. K.A.Anto and Another 2012(3) KHC 887 and another decision in Kamlesh Kumar v. State of Bihar and Another 2013(4) KHC 888 in support of his case. So, according to the learned counsel appearing for the revision the complaint is not maintainable and as such the courts below were not justified in convicting the revision petitioner for the offence alleged. He had also challenged the other findings of the courts below also. 6. The learned Public Prosecutor supported the concurrent findings of the courts below. 7. The case of the complainant in the complaint was that the revision petitioner borrowed Rs.2 lakhs and in discharge of that liability, she had issued Ext.P1 cheque. The cheque when presented was dishonoured and it was intimated and the revision petitioner had not paid the amount. The case of the revision petitioner was one of total denial. Her case was that a blank signed cheque given to her mother-in-law was misused and in collusion with the mother- in-law and her brother-in-law, the cheque was handed over to the complainant and the present complaint was filed. Except producing Exts.D1 and D2, no other evidence was adduced on her side to prove her case. She did not send any reply to the notice issued as well on this aspect. Except giving a suggestion to PW1, no acceptable evidence was adduced to prove the defence of the revision petitioner on this aspect. So, under the circumstances, the courts below were perfectly justified, in relying on the evidence of PW1 and also the presumptions available in Sections 139 and 118 of the Act, correctly coming to the conclusion that the complainant had proved that the revision petitioner had issued Ext.P1 cheque in discharge of her legally enforceable debt due from her to the complainant and that concurrent findings do not call for any interference. 8. As regards the other question is concerned, the contention of the revision petitioner was that the notice issued was beyond time. According to the counsel appearing for the revision petitioner, Ext.P2 dishonour memo was dated 06.12.2005 and the legal notice ought to have been issued on or before 06.01.2006 but it was issued only on 17.01.2006 which is beyond the time provided under Section 138 of the Act. 9. Section 138 of the Act reads thus:- 138. According to the counsel appearing for the revision petitioner, Ext.P2 dishonour memo was dated 06.12.2005 and the legal notice ought to have been issued on or before 06.01.2006 but it was issued only on 17.01.2006 which is beyond the time provided under Section 138 of the Act. 9. Section 138 of the Act reads thus:- 138. Dishonour of cheque for insufficiency, etc., of funds in the account:- "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) 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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 10. 10. S.138 (b) of the Act says 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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid". (emphasis made by this court). So notice has to be issued within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid and not from the date of dishonour of cheque. 11. When the time for sending notice starts or commences has been considered by the Division Bench of this court, in Immanuel v. Rajappan 2003(3) KLT 113 wherein it has been observed as follows:- Merely for the reason that it is not specifically stated in the above clause of the proviso that the information has to be in writing the interpretation given to that clause need not be that the information received regarding the return of the cheque as unpaid need not be in writing. In interpreting the provision in the above clause in the proviso to the section the purpose for which the provision has been made in the Act along with the other circumstances has to be taken into consideration. An interpretation which would advance the purpose for which the provision has been incorporated in the Negotiable Instruments Act by way of amendment has to be made. Once it is found that there is need for giving information in writing from the bank regarding the return of the cheque unpaid the mere fact that in the section it is not specifically stated that the information has to be in writing will not stand in the way of giving an interpretation to the provision that the information given from the bank has to be in witing. Before issuing notice as envisaged in proviso (b) to S.138 of the Act the payee or the holder in due course of the cheque must know on what ground the cheque was returned unpaid. That information can be obtained only from the bank. Before issuing notice as envisaged in proviso (b) to S.138 of the Act the payee or the holder in due course of the cheque must know on what ground the cheque was returned unpaid. That information can be obtained only from the bank. The information regarding the reason for returning the cheque as unpaid has to be authentic so that the payee or the holder in due course of the cheque can proceed to issue notice as envisaged in provision (b) to S.138 of the Act. The payee or the holder in due course of the cheque may not be able to issue notice under proviso (b) to S.138 of the Act merely on getting knowledge that the cheque was dishonoured. He must know before issuing notice the ground on which the cheque was returned unpaid. The reason for returning the cheque as unpaid can only be there in the information given from the bank in writing. This was followed in the decision in Amina v. Baby 2004 (3) KLT 568 by a Single Bench of this court. 12. In the decision Antony C.L. v. K.A.Anto and Another 2012(3) KHC 887, relied on by the counsel for the revision petitioner, a Single Judge of this Court has held that notice has to be issued within 15 days from date of intimation regarding dishonour in the complainant's bank, period is not to be counted from the date when the complainant received intimation from the bank. Crucial date is the date when the complainant's bank received the intimation from the bank of the accused and not when the complainant received information from his bank. 13. But in Kamlesh Kumar v. State of Bihar and Another 2013(4) KHC 888 (SC), relied on by the counsel for the revision petitioner it has been held that when the complainant admitted that he came to know about the date of dishonour on a particular date, the period of 30 days has to be computed from that date. The fact that memo received from the bank regarding date of dishonour bears a subsequent date, is of no consequence, in view of the specific admission of the complainant. It is also clear from the above decision that it is from the date of information of dishonour received by the complainant is the crucial date for starting point of time for issuing notice. It is also clear from the above decision that it is from the date of information of dishonour received by the complainant is the crucial date for starting point of time for issuing notice. In that case the complainant had admitted that when the cheque was presented in the bank, on the same date he came to know about the dishonour of the cheque as well. Subsequently, he obtained intimation letter from the bank with subsequent date and filed the complaint. It is under such circumstances, the Hon'ble Supreme Court has come to the conclusion that since there is evidence to show that he had knowledge about the dishonour on a particular date, 30 days period provided for sending notice has to be computed from the date of knowledge and not from the subsequent date of intimation received by him from the bank. 14. But, in this case, the complainant had specifically mentioned in the complaint that Ext.P2 dishonour memo dated 06.12.2005 was received by him along with Ext.P3 intimation letter dated 24.12.2005 and he issued the notice on 17.01.2006 evidenced by Ext.P5 postal receipt. The same was spoken to by PW1 when he was examined before the court as well and this aspect has not been challenged in cross examination so as to come to a conclusion that prior to Ext.P3 memo, the complainant had knowledge about the return of the cheque. So, under the circumstances, the dictum laid on in the decision reported in Antony C.L. (supra) cannot be said to be good in law and it is against the Division Bench decision of this court in Immanuel cited (supra) and also the decision in Kamlesh Kumar's case (supra). So, in view of the discussions made above, the submission made by the counsel for the revision petitioner that notice issued is beyond time than the period provided under Section 138(b) of the Act is not sustainable in law and that has to be rejected. So, in view of the discussions made above, the submission made by the counsel for the revision petitioner that notice issued is beyond time than the period provided under Section 138(b) of the Act is not sustainable in law and that has to be rejected. So, under the circumstances, the appellate court was perfectly justified in coming to the conclusion that notice was sent in time and the complaint is maintainable and rightly confirmed the order of conviction made by the court below against the revision petitioner under Section 138 of the Act and that concurrent findings of conviction entered by the court below do not call for any interference as there is no illegality committed by the court below on this aspect. 15. As regards the sentence is concerned, the court below had imposed only imprisonment till rising of court and imposed the cheque amount as fine with default sentence and directed to pay the fine if realised to the complainant as compensation under section 357(1) (b) of the Code. Maximum leniency has been shown in imposing the sentence as well. So, I don't find any reason to interfere with the sentence imposed by the court below as well on this aspect as it appears to be just and proper. 16. Before disposing the revision petition, the counsel appearing for the revision petitioner prayed for six months time for payment of the amount. However, considering the fact that the case is of the year 2006 and already eight years has been lapsed, this court feels that the period claimed by the revision petitioner appears to be excessive but considering the amount involved, this court feels that four months time can be granted for payment of the amount. So the revision petitioner is granted time till 27.02.2015 to pay the amount or deposit the amount before the court below. Till then the execution of sentence is directed to be kept in abeyance. So the revision petitioner is granted time till 27.02.2015 to pay the amount or deposit the amount before the court below. Till then the execution of sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and the revision petitioner produces the receipt of the same and that is being acknowledged by the complainant before the court below, then the court below is directed to treat the same as substantial compliance of direction to pay the amount to the complainant under Section 357(1) (b) of the Code and record payment of the amount in the respective registers as provided in Beena V. Balakrishnan Nair and Another [ 2010(2) KLT 1017 ] and Sivankutty V. John Thomas and Another [2012(4) KLT 21] and permit the revision petitioner serve the substantive sentence of till rising of court and close the case. With the above directions and observations, the revision petition is dismissed. Office is directed to communicate this order to the concerned court immediately.