IMPORTANT POINT
There is no bar to send a reminder notice.
Second notice is not an admission of non-service of first notice.

JUDGMENT :

N.V. Ramana, J.

1. This appeal arises out of the judgment and order dated 06-10-2003 passed by the High Court of Kerala at Ernakulam in Criminal Revision Petition No. 644 of 1995 whereby the High Court allowed the criminal revision of the first respondent by setting aside the concurrent judgments of Trial Court and Appellate Court, that first respondent cannot be convicted under Section 138 of the Negotiable Instruments Act, 1881 (in short “N.I. Act”) as the procedure prescribed under this section was not satisfied in the instant case.

2. Brief facts leading to this criminal appeal, as per the prosecution case, are that the first respondent/accused borrowed Rs. 64,000/- on 13-10-1990 from the appellant/complainant. In lieu of the borrowed amount, first respondent issued two cheques dated 13-10-1990 for Rs. 10,000/- and Rs. 25,000/- respectively both drawn on State Bank of India, Alappuzha Branch. Another cheque for Rs. 29,000/- dated 08-10-1990 was also given to the appellant by first respondent, which was issued by one K Rajesh, Development Officer, LIC drawn on State Bank of Travancore, Vadai Canal branch, Alappuzha.

3. Appellant presented first-two cheques dated 13-10-1990 on 04-04-1991 to his bank, State Bank of Travancore, Main branch, Alappuzha. First respondent’s bank returned the said two cheques on 05-04-1991 with an endorsement “Refer to drawer.” Appellant received intimation memo dated 05-04-1991 from his bank on 08-04-1991.

4. Appellant got issued a legal notice on 12-04-1991 to the first respondent, which was returned with postal endorsement “intimation served, addressee absent” on 20-04-1991. The same was received by the appellant’s advocate on 25-04-1991. Appellant again sent the legal notice on 04-05-1991. The second notice sent to first respondent’s address was returned with postal endorsement “Refused, returned to sender.” Thus, according to the appellant, first respondent failed to return the borrowed amount Rs. 64,000/- for which statutory notice under proviso (b) of Section 138 of N.I. Act was issued to him to make good the dishonoured cheques due to insufficiency of funds in his bank account.

5. On 23.05.1991 appellant lodged a private complaint before the Judicial First Class Magistrate-II, Alappuzha for the alleged offence under Section 138 of the N.I. Act, which was numbered as Summary Trial No. 34/92. After a full fledged trial and upon appreciating the documentary evidence adduced on behalf of the parties, the Trial Court allowed the complaint as the appellant was successful in proving, the case beyond reasonable doubt that first respondent committed an offence punishable under Section 138 of the N.I. Act. Accordingly, the Trial Court by judgment dated 29-07-1993 convicted and sentenced the first respondent to undergo simple imprisonment of three months.

6. Aggrieved by the conviction and sentence, first respondent preferred Criminal Appeal No 104 of 1993 before Addl. Sessions Judge at Alappuzha. The Ld. Judge, after perusing the records and on elaborate hearing, by its judgment dated 07-07-1995 dismissed the appeal by upholding and confirming the judgment of the Trial Court.

7. Against the said order, respondent preferred Criminal Revision no 644 of 1995 before the High Court of Kerala. The only ground raised before the High Court was that the provisions of Section 138 of the N.I. Act cannot be invoked as the appellant had not complied with the conditions in Clause (b) of the proviso to the said section. Notice demanding payment of the amount arising from the two dishonoured cheques in question was on 04-05-1991, whereas the intimation regarding dishonour of the said cheques was given by the appellant’s bank on 08-04-1991. Therefore, the notice was beyond 15 days. Hence, in such circumstances Section 138 of the N.I. Act was not attracted and no offence was made out.

8. The High Court by its judgment dated 06-10-2003 had allowed the revision by reversing the concurrent findings of the two Courts be