Apputty vs T.Yahutty

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947

CRL.REV.PET NO. 778 OF 2004

AGAINST THE ORDER DATED 18.06.1997 IN ST NO.4120 OF 1995 OF JUDICIAL MAGISTRATE OF FIRST CLASS, TIRUR REVISION PETITIONER/COMPLAINANT:

APPUTTY S/O. EDAPARAMBIL NARAYANAN, THRIPRANGODE AMSOM, TIRUR TALUK.

BY ADV T.KRISHNANUNNI RESPONDENTS/ACCUSED & STATE:

1 T.YAHUTTY S/O. BAVA, THEKKARAKATH HOUSE, THRIPRANGODE, TIRUR.

2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY ADV K.P.SHEREEF SRI.E.C.BINEESH - PP

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 778 OF 2004

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"C.R."

ORDER

The petitioner filed a private complaint under Section 142

of the Negotiable Instruments Act (for short, 'the NI Act') against

the 1st respondent before the Judicial Magistrate of First Class,

Tirur (for short, 'the trial court') alleging an offence under

Section 138 of the NI Act, as S.T.No.4120 of 1995. The learned

Magistrate dismissed the complaint as not maintainable, relying

on the decision of the Single Bench of Calcutta High Court in

Gopa Devi Ozha v. Sujit Paul, [1996 (2) KLT 886], which

held that a notice of demand must be for the cheque amount and

that if a higher or smaller amount is claimed in the notice, it is

not a valid notice. This revision petition has been filed

challenging the said order.

2. Heard Sri.T.Krishnanunni, the learned counsel for the

petitioner and Sri.E.C.Bineesh, the learned Public Prosecutor.

3. The Calcutta High Court in Gopa Devi Ozha (supra) CRL.REV.PET NO. 778 OF 2004

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has held that if a higher or smaller amount than the cheque

amount is claimed in the notice, it is not a valid notice. However,

the Division Bench of this Court in Kunjan Panicker v.

Christudas [1997 (2) KLT 539] took the view that a notice in

which the cheque amount with interest and costs is also claimed

cannot be said to be an invalid notice, but it is a valid notice.

4. Proviso (b) to Section 138 of the NI Act states that a

notice demanding payment of the 'said amount of money' shall

be made by the drawee of the cheque. The Supreme Court, in

Suman Sethi v. Ajay K. Churiwal, [(2000) 2 SCC 380]

interpreted the phrase 'the said amount of money' found in

proviso (b) to Section 138 of the NI Act, and held that the

demand has to be made for the 'said amount', which refers to the

cheque amount. It was also observed that the question whether a

notice demanding an amount higher than the cheque amount is

valid would depend on the language of the notice. It was held in

paragraph 8 of the said decision thus:

CRL.REV.PET NO. 778 OF 2004

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"8. It is a well - settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the "said amount"

there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break - up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad."

5. The above decision has been followed by the Supreme

Court in Dashrathabhai Trikambhai Patel v. Hitesh

Mahendrabhai Patel and Another [2022 (7) KHC 61]. It

was reiterated that notice demanding payment of 'the said

amount of money' in Section 138 has to be interpreted to mean

the cheque amount. Thus, the law is now well settled that the

notice issued under Section 138(b) of the N.I.Act should be for

the cheque amount. If no such demand is made, the notice

would fall short of its legal requirement. However, the notice can CRL.REV.PET NO. 778 OF 2004

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include other claims or demands such as interest, cost, damages,

etc. alongside the cheque amount, as long as they are separated

and do not overshadow the demand for the cheque amount. In

other words, the presence of additional claims in the demand

notice would not negate its validity, provided the cheque amount

is specified. If in a notice while giving the breakup of the claim,

the cheque amount, interest, damage etc., are separately

specified, the notice will not be bad. On the other hand, if, in the

notice, an omnibus demand is made, without specifying what

was due under the dishonoured cheque, the notice would be bad.

Where, in addition to the cheque amount, interest, cost etc. are

also demanded, whether the notice is bad or not would depend

upon the language of the notice.

6. I have perused the trial court records. In the report

annexed to the trial court records, it is stated that the documents,

including the original cheque, had already been taken back by

the complainant as early as 19.07.1997. Hence, the copy of the CRL.REV.PET NO. 778 OF 2004

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notice is not available in the trial court records. The question

whether the notice is bad or not would depend on the language

used in the notice.

7. In these circumstances, the impugned order is set

aside, and the matter is remanded to the learned Magistrate for

fresh disposal. The learned Magistrate shall take a fresh decision

in the light of the observations made in this order and also in the

light of the dictum laid down in the decisions referred to above.

The criminal revision petition is disposed of as above.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE AS