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Kooshy Titus v/s M/s. Crystal Biscuits India Private Ltd. & Others

    CRL.A.No.747 of 2000

    Decided On, 18 August 2004

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K.A. ABDUL GAFOOR

    For the Appellant: Siby Mathew, Philip J. Vettickattu, Advocates. For the Respondents: K. Shrihari Rao, Advocate, Sujith Mathew Jose, Public Prosecutor.



Judgment Text

The prosecution initiated by the appellant/complainant alleging the offence punishable under Section 138 of the Negotiable Instrument Act against the first respondent ended in acquittal. Therefore this appeal. Acquittal was only on the ground that the complaint was filed beyond the period of one month after the cause of action had arisen. It is submitted that the finding of the court below that the complaint was filed beyond the period of limitation is not justified. The appellant, in order to substantiate his case relied on the decisions of the Supreme Court reported in Central Bank of India v. M/s. Saxons Farms (1999 (3) KLT 484 and of the Delhi High Court in Padmini Polymers v. Unit Trust of India (2003 (3) KLT Short note 8, case No.10).


2. On the other hand, it is submitted by the counsel for the accused that, when admittedly there were two notices issued by the complainant/appellant, it was up to the complainant to prove that the first notice did not contain any demand and was not a notice in terms of Section 138(b). In the absence of such proof, there is Section 138(b). In the absence of such proof, there is no justification to interfere with the acquittal, the counsel submits.


3. The facts frame of the case on hand as follows. The accused a cheques Ext.P1. It was presented to the bank on 9.9.1996. It was dishonored with the endorsement funds insufficient. A notice was issued. There upon the accused assured payment. The assurance was not honoured. Again the cheques was presented on 28.10.1996. It bounced on the same reason, as reveled by memo dated 8.11.1996. Thereupon a notice was again issued. Though there was a reply the matter was not settled. So a complaint was filed within time. The first notice issued was not one demanding repayment of the amount covered by the cheques.


4. In order to constitute a notice under Section 138(b), the notice shall contain a demand as held by the Supreme Court in the decision in Central Bank of India V. M/s. Saxons Farms (1999 (3) KLT 484, the counsel submits. Equally so is the fact frame of the decision of the Delhi High Court in Padmini Polymers V. Unit Trust of India (2003 (3) KLT short note 8.


5. Of course to constitute a notice under Section 138 (b) of the N.I. Act, the notice shall contain a demand for payment of the amount covered by the bounced cheques. In this case the specific averment of the appellant/complainant in his complaint was that the complainant presented the cheques for encashment through his bank, Federal Bank Ltd, Edapally, on 9.9.1996 and the same was dishonoured with the endorsement ?fund not sufficient?. The complainant issued a registered notice informing the same. The accused had given assurance that he will pay the amount. If there was an assurance by the accused to pay amount pursuant to the notice, necessarily notice should have contained the demand for payment. It was up to the complainant to produce a copy of the notice to contend that there was no such demand therein. No such attempt was made in this case. If at all the complainant did not have a copy there of, it was incumbent for the complainant to call upon the accused to produce the same, to substantiate that it did not contain any demand. That course of action also has not been adopted in this case. In such circumstances, when the complainant/appellant admits that, he issued a registered notice immediately after the bouncing of the cheques on 9.6.1996, a cause of auction had arisen based on that notice, if it did not result in payment. Necessarily the complaint filed on 2.1.1997 will certainly be out of time with reference to bouncing of the cheques presented on 9.9.1996, pursuant to which the first registered notice was issued.


The decision of the apex court reported in Central Bank of India V. M/s. Saxons Farms (1999 (3) KLT 484, only says that the notice shall contain a demand. In this case it has not been proved that the first notice did not contain a demand.


Of course the decision of the Delhi High Court reported in Padmini Polymers V. Unit Trust of India (2003 (3) KLT short note 8 is almost similar to the case on hand with respect to the facts frame. But in that case there was only a lette

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r which cannot be termed as a legal notice in terms of Section 138. On the other hand in this case the specific averment of the complainant in his complaint was that he issued a registered notice immediately after the first bouncing and the accused assured payment there upon. Therefore the dictum therein does not have application to the fact frame of the case. Necessarily there is no reason for interference with the acquittal. Appeal fails and is dismissed.
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