SHIHAHBUDDIN AHAMMED Vs. A.K. KRISHNARAJ AND ORS.

JUDGEMENT

(1.) The question is whether non mentioning of the cheque number in the notice issued by the "payee or the holder of the cheque" amounts to non-compliance of S.138(b) of the Negotiable Instruments Act This revision petition was preferred against the judgment in Criminal Appeal No.109/2003 of the Additional Sessions Judge, Fast Track- I, Palakkad. The revision petitioner was the accused in S.T.No.274/1999 before the Chief Judicial Magistrate, Palakkad for having committed an offence punishable u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N. I. Act). The complainant's case in the trial Court was that the accused borrowed a sum of 1 lakh from him and in discharge of that debt, he issued Ext.P1 cheque. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant, who is the holder of the cheque demanded the amount by issuing a notice in writing to the drawer of the cheque. Even after notice, there was no repayment, hence the complaint.

(2.) During trial, complainant was examined as PW1 and his documents were marked as Exts.P1 to P6. The accused did not adduce any defence evidence. The learned Chief Judicial Magistrate, Palakkad convicted the accused u/s.138 of the N.I. Act and sentenced to simple imprisonment for three months and 1,00,000/- as compensation u/s.357(3) Cr.P.C. Against that, he preferred criminal appeal 109/2003 before Additional Sessions Judge, Fast Track-I, Palakkad which was dismissed by the appellate Court. Being aggrieved by that, he preferred this revision petition.

(3.) Sri. Vijaya Bhanu, the learned counsel appearing for the revision petitioner contended that the cheque number mentioned in the complaint as well as in Ext.P4 notice is different and if it is not mentioned correctly in the notice, there is no cause of action as claimed u/s.138 (b) of the N.I. Act. When there is no proper notice, the conviction and sentence passed by the trial Court is to be set aside. He relied the decisions reported in Bank of Baroda v. Philip Thomas, 2006 3 KerLT 729 and John K. Abraham v. Simon C. Abraham, 2014 1 KerLT 90 (SC).