SAJIKUMAR T.S Vs. VIJAYAKUMARI

JUDGEMENT

(1.) A prosecution under Section 138 of the Negotiable Instruments initiated in 2007 is still alive at the second round. A cheque for 3,25,000/ - issued by the revision petitioner in favour of the 1st respondent herein in discharge of a debt was bounced due to insufficiency of funds. When he failed to make payment on demand, the 1st respondent initiated prosecution before the Judicial First Class Magistrate - VI, Thiruvananthapuram in C.C No.1706/2007. The revision petitioner entered appearance in the trial court, pleaded not guilty to the accusations, and made contest. During trial, he contended that there was no proper and legal notice as prescribed under Section 138 (b) of the Negotiable Instruments Act. The complainant examined herself as PW1 and marked Exts.P1 to P5 at the first round. The accused examined himself in defence as DW1, and also proved Ext.D1 passport. On trial, the trial court found that the cheque in question was in fact issued by the revision petitioner in discharge of a legally enforceable debt, that it was bounced due to insufficiency of funds, and that there was proper compliance of all procedural formalities for initiation of prosecution. In view of the specific contest regarding notice, the trial court found that there is proper and legal notice. On conviction under Section 138 of the Negotiable Instruments Act, the revision petitioner was sentenced to undergo simple imprisonment for three months, and was also directed to pay a compensation of 3,25,000/ - by judgment dated 12.02.2009. Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session, Thiruvananthapuram with Crl.A No.198/2009. In appeal, the learned First Additional Sessions Judge concurred with the findings of the trial court on all points except regarding the sufficiency of statutory notice. Accordingly, the matter was remanded in appeal to the trial court for a fresh consideration regarding sufficiency of notice. The other findings were confirmed in appeal, and the matter went back for the limited purpose of deciding whether there is proper and legal notice in this case as provided under Section 138 (b) of the Negotiable Instruments Act. After remand, the complainant was recalled and examined further and Ext.P6 was also marked on his side. The accused did not adduce any further evidence after remand. To prove Ext.P6, the Bank Manager was also examined as PW2 after remand. Finding that the genuineness of Ext.P6 stands proved by PW2 and that the date of intimation of dishonour is 14.7.2007, the trial court found that the notice sent by the complainant on 13.8.2007 is proper and legal. Accordingly, the trial court again convicted the revision petitioner under Section 138 of the Negotiable Instruments. He was sentenced to undergo simple imprisonment for three months, and was also directed to pay a compensation of 3,25,000/ - under Section 357 (3) of Cr.P.C.

(2.) AGGRIEVED by the conviction and sentence, the revision petitioner again approached the Court of Session, Thiruvananthapuram with Crl.A No.171/2012. In appeal, the Second Additional Sessions Judge concurred with the findings of the trial court regarding sufficiency of notice, and accordingly dismissed the appeal. Now the accused is before this Court in revision, challenging the legality and propriety of the said finding of the courts below regarding sufficiency of notice.

(3.) THE cheque in question was issued on 8.5.2007. It was bounced due to sufficiency of funds on 12.7.2007, but the complainant is definite that she received intimation only on 14.7.2007. Of course, it is true that Ext.P6 intimation given from the Bank was not produced at the first round. But the genuineness of this intimation letter stands well proved by the evidence of PW2, the Bank Manager. Statutory notice was admittedly sent on 13.8.2007. The question is whether Ext.P6 intimation is acceptable, or whether the case of the complainant is acceptable that she got intimation of dishonour only on 14.7.2007.