Kerala High Court

Suresh Kumar vs Alamelu Ammal on 6 October, 2025

                                               2025:KER:73485
                               1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MR. JUSTICE GOPINATH P.

  MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947

                     CRL.A NO. 277 OF 2023

          AGAINST THE JUDGMENT DATED IN ST NO.351 OF 2016 OF
        JUDICIAL FIRST CLASS MAGISTRATE TEMPORARY COURT,
                          NEYYATTINKARA
APPELLANT/PETITIONER:

            P.S. MADHUSOODANAN
            AGED 59 YEARS
            S/O.PARAMESWARAN PILLAI, RESIDING AT REVATHI
            BHAVAN, GANDHIPURAM, MOOLAKARA, KOTTUKAL,
            THIRUVANANTHAPURAM, PIN - 695501


            BY ADVS.
            SRI.PIRAPPANCODE V.S.SUDHIR
            SHRI. AKASH S.
            SHRI. GIRISH KUMAR M S
            SMT.V.S.VARALEKSHMI
            SMT.DEVIKA JAYARAJ


RESPONDENTS:

    1       ALAMELU AMMAL
            KERALA KHADI AND VILLAGE INDUSTRIES GRAMA
            SOUBHAGYA SHOP NO. 24, ATTUKAL SHOPPING COMPLEX,
            EAST FORT, THIRUVANANTHAPURAM., PIN - 695023

    2       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF
            THE ADVOCATE GENERAL, HIGH COURT BUILDING,
            ERNAKULAM, PIN - 682031


            BY ADVS.
            SRI.GOPAKUMAR R.THALIYAL
            SRI.R.B.BALACHANDRAN
                                                       2025:KER:73485
                                2



OTHER PRESENT:

          SMT. SEENA.C (PP)


THIS   CRIMINAL   APPEAL   HAVING   COME   UP   FOR    ADMISSION   ON
03.03.2023, ALONG WITH CRL.A.278/2023, 291/2023 AND HAVING
BEEN FINALLY HEARD ON 25.09.2025 THE COURT ON 06.10.2025
DELIVERED THE FOLLOWING:
                                                2025:KER:73485
                               3


            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MR. JUSTICE GOPINATH P.

  MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947

                     CRL.A NO. 278 OF 2023

          AGAINST THE JUDGMENT DATED IN ST NO.353 OF 2016 OF
        JUDICIAL FIRST CLASS MAGISTRATE TEMPORARY COURT,
                          NEYYATTINKARA
APPELLANT/S:

            P.S.MADHUSOODANAN
            AGED 59 YEARS
            S/O.PARAMESWARAN PILLAI, RESIDING AT REVATHI
            BHAVAN, GANDHIPURAM, MOOLAKARA, KOTTUKAL,
            THIRUVANANTHAPURAM:695 501


            BY ADVS.
            SRI.PIRAPPANCODE V.S.SUDHIR
            SHRI. AKASH S.
            SHRI. GIRISH KUMAR M S
            SMT.V.S.VARALEKSHMI
            SMT.DEVIKA JAYARAJ




RESPONDENT/S:

    1       VENKITESWARAN
            RESIDING AT PRA-2, PUNNAPURAM ROAD, KAITHAMUKKU,
            THIRUVANANTHAPURAM, PIN - 695024

    2       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF
            THE ADVOCATE GENERAL, HIGH COURT BUILDING,
            ERNAKULAM, PIN - 682031


            BY ADVS.
            SRI.GOPAKUMAR R.THALIYAL
                                                       2025:KER:73485
                                4

          SRI.R.B.BALACHANDRAN



THIS   CRIMINAL   APPEAL   HAVING   COME   UP   FOR    ADMISSION   ON
03.03.2023, ALONG WITH CRL.A.277/2023, 291/2023 AND HAVING
BEEN FINALLY HEARD ON 25.09.2025 THE COURT ON 06.10.2025
DELIVERED THE FOLLOWING:
                                                2025:KER:73485
                               5


            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MR. JUSTICE GOPINATH P.

  MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947

                     CRL.A NO. 291 OF 2023

          AGAINST THE JUDGMENT DATED IN ST NO.352 OF 2016 OF
        JUDICIAL FIRST CLASS MAGISTRATE TEMPORARY COURT,
                          NEYYATTINKARA
APPELLANT:

            SURESH KUMAR
            AGED 58 YEARS
            SOUPARNIKA, THEKKEVILA, KOTTUKAL. THEKKEVILA,
            KOTTUKAL, THIRUVANANTHAPURAM, PIN - 695501


            BY ADVS.
            SRI.PIRAPPANCODE V.S.SUDHIR
            SHRI. AKASH S.
            SHRI. GIRISH KUMAR M S
            SMT.V.S.VARALEKSHMI
            SMT.DEVIKA JAYARAJ

RESPONDENTS:

    1       ALAMELU AMMAL
            KERALA KHADI AND VILLAGE INDUSTRIES GRAMA
            SOUBHAGYA SHOP NO. 24, ATTUKAL SHOPPING COMPLEX,
            EAST FORT, THIRUVANANTHAPURAM, PIN - 695023

    2       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF
            THE ADVOCATE GENERAL, HIGH COURT BUILDING,
            ERNAKULAM, PIN - 682031


            BY ADVS.
            SRI.GOPAKUMAR R.THALIYAL
            SRI.R.B.BALACHANDRAN
                                                       2025:KER:73485
                                6

THIS   CRIMINAL   APPEAL   HAVING   COME   UP   FOR    ADMISSION   ON
03.03.2023, ALONG WITH CRL.A.277/2023, 278/2023 AND HAVING
BEEN FINALLY HEARD ON 25.09.2025 THE COURT ON 06.10.2025
DELIVERED THE FOLLOWING:
                                                      2025:KER:73485
                                  7


                            JUDGMENT

[CRL.A Nos.277/2023, 278/2023, 291/2023]

Criminal Appeal No.277/2023 has been filed challenging

the judgment dated 30.12.2022 in S.T.No.351/2016 on the file of the

Judicial First Class Magistrate Temporary Court, Neyyattinkara

through which a complaint filed by the appellant alleging the

commission of offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.

Act') by the 1st respondent in the said appeal/accused was found not

maintainable and the 1st respondent/accused was acquitted under

Section 255(1) of the Cr.P.C.

2. Criminal Appeal No.278/2023 has been filed

challenging the judgment dated 30.12.2022 in S.T.No.353/2016 on

the file of the Judicial First Class Magistrate Temporary Court,

Neyyattinkara, through which a complaint filed by the appellant

alleging the commission of offence punishable under Section 138 of

the N.I. Act by the 1st respondent in the said appeal/accused was

found not maintainable and the 1st respondent/accused was

acquitted under Section 255(1) of the Cr.P.C.

2025:KER:73485

3. Criminal Appeal No.291/2023 has been filed

challenging the judgment dated 30.12.2022 in S.T.No.352/2016 on

the file of the Judicial First Class Magistrate Temporary Court,

Neyyattinkara through which a complaint filed by the appellant

alleging the commission of offence punishable under Section 138 of

the N.I. Act by the 1st respondent in the said appeal/accused was

found not maintainable and the 1st respondent/accused was

acquitted under Section 255(1) of the Cr.P.C.

4. Crl.A.Nos.277/2023 and 278/2023 are filed by the

same person, while the appellant/complainant in

Crl.A.No.291/2023 is the brother of the appellant/complainant in

the other two appeals. The 1st respondent/accused in

Crl.A.Nos.277/2023 and 291/2023 is the wife of the 1 st

respondent/accused in Crl.A.No.278/2023.

5. The appellants/complainants contend that the

respondents/accused used to consult the appellant/complainant in

Crl.A.No.291/2023 for astrological advice and had requested him for

a loan to tide over their financial difficulties. It is alleged that the

appellant in Crl.A.No.291/2023 had advanced a sum of Rs.

4,00,000/- to the 1st respondent/accused in that case, while the

appellant in Crl.A.Nos.277/2023 and 278/2023 had advanced a total 2025:KER:73485

sum of Rs.9,00,000/- to the respondents in those appeals.

According to the appellants, the respondents/accused had issued

cheques for the repayment of the amounts borrowed, and since

those cheques were dishonoured, they initiated proceedings alleging

commission of offences punishable under Section 138 of the N.I.Act.

The trial court concluded that the accused were entitled to be

acquitted as the complaints were filed beyond the statutory period

contemplated by Section 142 of the N.I.Act. A perusal of the

judgments impugned in these appeals will indicate that the learned

Magistrate had reached such a conclusion based on the law laid

down by this Court in Jayakrishnan v. Unnikrishnan and

another, 2015 (5) KHC 683, where this Court took the view that

where the statutory notice which is contemplated by the provisions

of Section 138 of the N.I.Act had been returned with the

endorsement 'refused', the cause of action for filing a complaint

would begin to run from the date on which the notice was returned

to the sender and not after 15 days from the date of receipt of such

notice. In other words, it was held that when a notice is returned as

'refused', the period of limitation contemplated by the provisions

under Section 142 of the N.I.Act would run from the date on which

the notice was returned, and the question of granting 15 days for 2025:KER:73485

payment does not arise. It is not disputed before me that, if the view

taken by the learned Magistrate based on the law laid down in

Jayakrishnan (supra) is found to be correct, the individual

complaints filed by the appellants would be beyond the time

contemplated by the provisions of Section 142 of the N.I.Act and

would, therefore, not be maintainable as no application for

condonation of delay had been filed along with the individual

complaints. Since the singular issue involved is common, these

appeals can be conveniently disposed of by common judgment.

6. The learned counsel appearing for the appellants would

submit that whether or not the statutory notice had been returned as

'refused; or had actually been received by the respondents/accused,

the cause of action to file a complaint would run only from the

completion of the 15 days contemplated by clause (c) of the proviso

to Section 138 of the N.I.Act. He relies on the judgment of the

Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed

and another, (2007) 6 SCC 555 and also on the judgment of the

Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan

Balan and another, (1999) 7 SCC 510 in support of his

contention. It is submitted that this Court in Jayakrishnan

(supra) did not notice the judgments of the Supreme Court referred 2025:KER:73485

to above, and therefore, the law laid down in Jayakrishnan

(supra) is per incuriam.

7. The learned counsel appearing for the

respondents/accused would submit that the judgment of the

Supreme Court in Alavi Haji (supra) did not deal with the

question considered by this Court in Jayakrishnan (supra). It is

submitted that a reading of the judgment in Alavi Haji (supra)

indicates that the Supreme Court was considering the effect of

Section 27 of the General Clauses Act, 1897, which deals with the

presumption regarding service of notice, when the notice is sent to

the correct address by registered post. It is submitted that while the

refusal to accept a notice issued at the correct address by the

registered post can be presumed to be service of notice for the

purposes of Section 138 of the N.I.Act when the notice had been

refused, there was no question of giving a 15-day period for the

drawer of the cheque to make the payment. In other words, it is

submitted that when the drawer of the cheque had refused the

notice, the same indicates his refusal to pay any amounts under the

cheque and the cause of action to file a complaint starts immediately

after the notice is returned to the sender.

8. Having heard the learned counsel appearing for 2025:KER:73485

the appellants in these cases and the learned counsel appearing for

the respondents/accused and on a perusal of the law laid down by

the Supreme Court in Alavi Haji (supra), I am of the view that the

point raised is squarely covered in favour of the appellants by the

judgment of the Supreme Court in Alavi Haji (supra). In Alavi

Haji (supra), the Supreme Court was considering a reference by a

bench of two judges of the Supreme Court as to whether in the

absence of any averment in the complaint to the effect that the

accused had a role to play in the matter of non-receipt of legal notice

or that the accused had deliberately avoided service of notice, the

complaint could have been entertained in the light of law laid down

in D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC

456. While considering the above question, the three-judge bench

in Alavi Haji (supra) held as follows:-

"6. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made 2025:KER:73485

subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act, extracted above. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days' time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a precondition for invoking Section 138 of the Act, giving a notice to the drawer before filing complaint under Section 138 of the Act is a mandatory requirement.

7. The issue with regard to interpretation of the expression "giving of notice" used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran v. Sankaran Vaidhyan Balan the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days "of the receipt" of the said notice. "Giving notice" in the context is not the same as "receipt of notice". Giving is a process of which receipt is the accomplishment. It is for the payee to 2025:KER:73485

perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasising that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus:

(SCC p. 519, paras 20-21)

"20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure.

21. In Maxwell's Interpretation of Statutes, the learned author has emphasised that 'provisions relating to giving of notice often receive liberal interpretation' (vide p. 99 of the 12th Edn.). The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he 2025:KER:73485

is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause

(b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to 'make a demand' by giving notice. The thrust in the clause is on the need to 'make a demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does."

8. Since in Bhaskaran case the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: "Will there be any significant difference between the two so far as the presumption of service is concerned?" It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "the GC Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.

2025:KER:73485

9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappa case. Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non-availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere, etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some time after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non- availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee 2025:KER:73485

is not available on the given address. This Court held:

(SCC p. 463, para 15)

"15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely, the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive 2025:KER:73485

notice. Therefore, it would be premature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence.

In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure."

10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the GC Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque.

Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address."

(Emphasis supplied)

It is thus clear that even where the notice was refused or unclaimed,

the same would be deemed to be served by virtue of the provisions 2025:KER:73485

contained in Section 27 of the General Clauses Act provided the

notice had been issued at the correct address of the accused by

registered post and the cause of action for filing the complaint would

commence only on completion of the 15 days contemplated by clause

(supra), this Court was dealing with the revision petition filed by the

accused who contended that where the notice had been refused, the

complaint could not have been filed before the expiry of 15 days

from the date on which the notice that was refused was returned to

the sender. While rejecting that contention, this Court held as

follows:-

"6. In the above view point, I am of the opinion that 15 days' period provided for payment is applicable to the drawer, who received the notice only, and in the case where the drawer refused to accept the notice, the payee is not liable to wait for expiry of 15 days from the date of refusal to get the cause of action accrued. In the case where notice is received by the drawer, the cause of action arises only on the expiry of 15 days; whereas, in the case of 'refusal', the cause of action would arise on the day on which the payee gets back the returned notice on refusal by the drawer and the period of 30 days for filing the complaint begins to run from that day onwards. So, the complainant is justified in filing the complaint immediately 2025:KER:73485

after the receipt of the returned lawyer's notice, without waiting for the expiry of 15 days. In this analysis, I find that the complaint is maintainable under the relevant law and there is no legal infraction with the statutory compliance under S.138(c) or S.142(b) of the NI Act."

On a reading of the judgment of the Supreme Court in Alavi Haji

(supra), I am constrained to hold that the view taken by this Court

in Jayakrishnan (supra) is per incuriam and without noticing the

decision of the Supreme Court in Alavi Haji (supra). In light of

the above finding, these appeals are to be allowed. However, since

the matter was decided on the sole ground that the complaints in

question were filed beyond the statutory period contemplated by the

provisions of Section 138 of the N.I. Act, I have no option but to set

aside the impugned judgments and remand the matter for fresh

consideration of the trial court.

9. Accordingly, these appeals are allowed by way of

remand and the judgment dated 30.12.2022 in S.T.No.351/2016,