Cri. Revn. Petn. No. 2824 of 2006. Case: Aniyah Thomas Chacko Vs Varvelil Bankers and Anr.. Kerala CEGAT & CESTAT High Court
| Case Number | Cri. Revn. Petn. No. 2824 of 2006 |
| Counsel | For Petitioner: M. V. S. Namboothiry, Adv. and For Respondents: Smt. P. Deepthi, Public Prosecutor. |
| Judges | R. Basant, J. |
| Issue | Negotiable Instruments Act (26 of 1881) - Sections 138, 142(b), 139 |
| Citation | 2006 CriLJ 4356 |
| Judgement Date | August 16, 2006 |
| Court | Kerala CEGAT & CESTAT High Court |
Order:
-
Can the cause of action under S. 142(b) of the N.I. Act be said to commence from the date on which a defective notice, against which specific objection is taken by the payee of the cheque, is received? Will the clock of limitation start ticking on the lapse of 15 days from the date of receipt of such notice? These are the crucial questions that arise for consideration in this revision petition directed against a concurrent verdict of guilty, conviction and sentence.
-
To the skeletal fact first. The signature in the cheque is admitted. Handing over of the cheque is also admitted. Transactions between the parties is not disputed. The cheque is for an amount of Rs. 50,000/-. It bears the date 10-6-2002. The cheque was admittedly dishonoured on the ground of insufficiency of funds. It was initially dishonoured in June, 2002. A notice of demand, Ext. D4, was issued on 29-6-2002. Ext. P8 reply was given to Ext. D4 notice. In Ext. P8 a contention was raised that no such cheque was issued at all. The complainant then realised that a very crucial mistake had crept into the notice, Ext. D4, sent by him. The cheque was actually drawn on the State Bank of Travancore. But in the notice sent by the counsel, Ext. D4, there was a crucial, grave and vital error in describing the cheque as one issued by the Indian Overseas Bank, Pathanamthitta. The complainant was faced with a dilemma. He could proceed with the prosecution and request the Court to ignore the error committed in the name of the bank on which the cheque was drawn. In the alternative he could disregard the notice, Ext. D4, the same being crucially and vitally defective and present the cheque again for encashment. The complainant appears to have been advised to follow the latter course. He presented the cheque again. It was dishonoured again on the ground of insufficiency of funds. Ext. P5 notice of demand was thereupon issued. This notice was duly received and acknowledged by the accused. It did not evoke any response. The complainant, in these circumstances, came to Court with a complaint under S. 138 of the N.I. Act after scrupulously following the statutory time table. The complainant examined himself as P.W. 1 and proved Exts. P1 to P10.
-
The accused in Ext. P8 reply took up a defence of total denial. When he received Ext. P5 notice, he did not respond at all. But in the course of the trial the petitioner/accused took up a contention that the amount due under Ext. P2 cheque has already been paid and discharged under Exts. D5 and D6 receipts. Ext. D5 is a receipt for Rs. 30,000/- D/- 4-11-2000. Ext. D6 is another receipt Dt. 20-7-2001 for Rs. 20,000/-. According to the accused, the amount due under Ext. P2 cheque Rs. 50,000/- had already been paid and discharged under Exts. D5 and D6. The accused took up a further contention that Ext. P2 cheque was not issued for the due discharge of any legally enforcible debt/liability. It was issued as a blank signed cheque when the parties entered into the transaction as security for due repayment. Though the amount was repaid under Exts. D5 and D6, the complainant did not return the blank signed cheque. This in short is the contention raised. No oral evidence was adduced by the accused. Exts. D1 to D6 were marked.
-
I have already referred to Exts. D4 to D6. Exts. D1 to D3 are demands made earlier by the complainant calling upon the petitioner to pay the amounts outstanding as per the transactions. The accused did of course raise the further crucial contention that the prosecution is barred by limitation inasmuch as the complaint was not filed within 45 days of date of service of Ext. D4 notice.
-
The Courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under S.1 38 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.
-
Called upon to explain the...
To continue reading
Request your trial