K P CHANDRADASAN Vs. GEORGE KOLLASSANI
HIGH COURT OF KERALA
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(1.) Crl. R.P.852/2002 is filed by the accused in C.C.418/1999 on the file of the Additional Chief Judicial Magistrate, Economic Offences, Ernakulam. C.C.418/1999 was taken on file by the Magistrate on the basis of a complaint filed by the first respondent alleging commission of the offence punishable under S.138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The allegation was that the petitioner issued a cheque for Rs.20,000/- to the first respondent and it was dishonoured for the reason that there was no sufficient amount in the account maintained by the petitioner in the bank. After dishonour of the cheque, notice was issued to the petitioner demanding payment of the amount covered by the cheque. A complaint was filed by the first respondent alleging commission of the offence punishable under S.138 of the Act since the petitioner did not pay the amount within 15 days of receipt of notice. After taking evidence, the learned Magistrate found that the petitioner committed the offence under S.138 of the Act and on convicting him thereunder sentenced him to undergo rigorous imprisonment for three months and to pay compensation of Rs.20,000/- under S.357(3) of the Criminal Procedure Code. Petitioner filed Crl. A.216/2000 in the Sessions Court, Ernakulam and that appeal was disposed of by the learned Sessions Judge confirming the order of conviction and directing that the petitioner has to undergo simple imprisonment for three months and to pay compensation of Rs.20,000/-.
(2.) Crl. R.P.857/2002 arises out of C.C.592/1999 on the file of the Additional Chief Judicial Magistrate, Economic Offences, Ernakulam and the allegation in the above case was also that the petitioner committed the offence punishable under S.138 of the Act. In both the above cases which were pending on the file of the Additional Chief Judicial Magistrate the accused was the same person, the petitioner in both these revisions and both the cases were jointly tried and disposed of by the learned Magistrate by a common judgment. The allegation in C.C.592/1999 was that the petitioner issued a cheque for Rs.40,000/- to the first respondent and when that cheque was presented for encashment it was returned unpaid for the reason that the payment was stopped. Even after issuance of notice demanding payment of the amount, the petitioner did not care to pay the amount and hence the complaint alleging commission of offence punishable under S.138 of the Act was filed against the petitioner. The learned Magistrate convicted the petitioner under S.138 of the Act and sentenced him to undergo rigorous imprisonment for six months and to pay compensation of Rs.40,000/-. Crl. A.217/2000 was filed in the Sessions Court, Ernakulam and the appellate Court confirmed the conviction and modified the sentence directing that the petitioner has to undergo simple imprisonment for three months and to pay compensation of Rs.40,000/-.
(3.) The argument advanced by the learned counsel appearing for the petitioner is that in C.C.418/1999 the order of conviction made by the learned Magistrate is improper for the reason that there is no evidence in the case to show that proper notice as envisaged in S.138(b) of the Act was given to the petitioner. The first respondent was examined in the case as PW.1. In the chief examination PW.1 says that he got Ext. P3 memo from the bank on 17.6.1996. Ext. P3 is the memo sent from the bank regarding the dishonour of Ext. P1 cheque for Rs.20,000/-. Ext. P5 is the postal receipt for sending notice. It is seen from Ext. P5 that the notice was sent to the petitioner on 4.7.1996. It is clear from the above evidence available on records that the notice was not sent by the first respondent within 15 days of receipt of information regarding the return of the cheque unpaid. Since the notice has not been sent within the time specified as per the provisions of the Act the finding by the Trial Court as well as the appellate Court that the petitioner committed the offence under S.138 of the Act in C.C.418/1999 is not correct. The order of conviction and sentence of the petitioner in C.C.418/1999 is liable to be set aside for that reason alone.;
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