S PRITHVIRAJ KUKKILLAYA Vs. MATHEW KOSHY

JUDGEMENT

(1.) This Criminal Revision Petition is directed against an order passed by the court below holding that prosecution .against the 1st respondent was not maintainable in view of Art.20(1) of the Constitution of India.

(2.) Short facts which are necessary for determination of the question raised in the Criminal Revision Petition are as follows; Ist respondent approached the petitioner herein for a loan of Rs. 17,000/- and represented that the amount would be returned within a month. The petitioner paid the amount. Towards the discharge of debt, 1st respondent drew a cheque in favour of the petitioner on the State Bank of India, Statue Branch, Thiruvananthapuram on 2-12-1988. On 8-4-1989, petitioner presented the cheque for encashment. The State Bank of India dishonoured the cheque with endorsement 'refer to drawer' on the same day. Thereupon, petitioner demanded payment of the amount through a registered notice dated 13-4-1989. Ist respondent received the same on 17-4-1989. As there was no response to the notice, nor any payment, petitioner filed a complaint before the lower court on 19-5-1989 alleging that 1st respondent committed an offence under S.138 of Negotiable Instruments Act (hereinafter referred to as 'the Act') as amended by the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988.

(3.) Ist respondent raised a preliminary objection before the lower court that complaint is not maintainable in view of the bar contained in Art.20(1) of the Constitution.