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KERALA HIGH COURT
A. Badharudeen, J.
Rajesh K. – Appellant
versus
Asokan P.K. and Anr. – Respondents
CRL.A No. 212 of 2013
Decided on 26.5.2026
Counsel for the Parties:
For the Appellant:Sri. E. Narayanan, Advocate.
For the Respondents: Sr. Public Prosecutor Sri. Alex M Thombra
IMPORTANT POINT
Dishonour of cheque – Offence under Section 138 of NI Act is a deemed offence and offence would be complete only after completion of five stages.
Headnote:
Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque – Appeal against acquittal – When there is demand for actual amount covered by cheque and consequential failure to pay the amount within 15 days, then only offence under Section 138 of NI Act said to be committed by drawer of cheque – In absence of demand for actual/specific amount demanded in notice, no offence would be completed, particularly, ‘deemed offence’ – When complainant fails to mention amount in demand notice contemplated under proviso (b) to Section 138 of NI Act, notice is incomplete and recipient of notice could not pay the amount to avoid penal consequences – As such, there is no legal notice in eye of law – Impugned order of acquittal affirmed. (Paras 11 and 12)
Result: Acquittal Appeal dismissed.
JUDGMENT
Judgment in S.T.No.1862/2010 on the files of the Judicial First Class Magistrate Court-II, Perambra, dated 30.11.2012 is under challenge in this appeal filed at the instance of the complainant in the above case. The 1st respondent herein is the accused and the 2nd respondent is the State of Kerala.
2. Heard the learned counsel for the appellant/complainant and the learned Public Prosecutor. Though notice served upon the 1st respondent/accused, he did not turn up.
3. On dishonour of a cheque for ¹ 95,000/- (Rupees ninety-five thousand only), the complainant lodged complaint before the Judicial First Class Magistrate Court-II, Perambra alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’ hereinafter), by the accused.
4. The trial court secured presence of the accused for trial. During trial, PW1 was examined and Exts.P1 to P4 were marked on the side of the complainant. DW1 was examined on the side of the accused.
5. On hearing both sides and on appreciating evidence, the trial court acquitted the accused.
6. While assailing the veracity of the judgment rendered by the learned Magistrate, the learned counsel for the appellant/complainant argued that the learned Magistrate went wrong in acquitting the accused where the ingredients for the offence are proved by the complainant. It is also pointed out that the trial court went wrong in finding that there was no legal notice as mandated under proviso (b) to Section 138 of the NI Act, merely on the ground that the amount was not mentioned in the notice. According to the learned counsel for the appellant/complainant, when reading the evidence of PW1 well supported by the evidence of DW1, in between the complainant and the accused, there is only one transaction and therefore, nonmentioning of the cheque amount demanded in the notice is of no repercussion as the amount is known to the complainant. Therefore, the judgment of acquittal would deserve interference by imposing punishment on the accused.
7. Now, the points arise for consideration are:
(i) What are the essentials to be stated in a notice contemplated under proviso (b) to Section 138 of the NI Act?
(ii) Mere mentioning of the dishonoured cheque number and date would suffice the requirements of notice under proviso (b) to Section 138 of the NI Act?
(iii) Whether the trial court was right in holding that the accused was found not guilty of the offence punishable under Section 138 of the NI Act?
(iv) Whether the verdict would require interference?
(v) The order to be passed?
8. Point Nos.(i) to (v)
Insofar as the verdict impugned is concerned, the specific finding of the learned Magistrate is that in a notice demanding payment of amount covered by the dishonoured cheque in terms of proviso (b) to Section 138 of the NI Act, the amount should be specifically stated so as to facilitate payment of the same to avoid penal consequences.
9. It is relevant to note that as per proviso (b) to Section 138 of the NI Act, it has been provided as under:
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque,[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
10. Similarly, proviso (c) to Section 138 of the NI Act provides as under:
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
11. It is well settled that the offence under Section 138 of the NI Act is a deemed offence, and the offence would be complete only when completion of five stages, viz., (1) issuance of cheque for a legally enforceable debt or liability (2) presentation of cheque within its time limit, i.e., presentation withi
