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Kerala High Court

Janardhanan.V vs Viswanathan.P on 19 February, 2026

                                      1
Crl. R.P. No. 362/2021

                                                          2026:KER:14825
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                   THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          THURSDAY, THE 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947

                          CRL.REV.PET NO. 362 OF 2021

       JUDGMENT DATED 27.02.2021 IN Crl.A NO.409 OF 2019 OF ADDITIONAL
SESSIONS COURT-V, KOZHIKODE
       JUDGMENT DATED IN CC NO.136 OF 2017 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -I,THAMARASSERY

REVISION PETITIONER/APPELLANT/ACCUSED:

              JANARDHANAN.V., AGED 53 YEARS,
              S/O.RARUKUTTY, KASHMEERAM, KARATTAMMAL HOUSE,
              CHATHAMANGALAM PO., (VIA) NIT, KOZHIKODE 673 601


              BY ADV SRI.SHEJI P.ABRAHAM


RESPONDENTS/RESPONDENTS:

      1       VISWANATHAN. P.,
              AGED 55, S/O.RAGHAVAN, POYILIL HOUSE, MANIPURAM P.O.,
              KODUVALLY, KOZHIKODE 673 572

      2       STATE OF KERALA
              REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA- 682 031


              R1 BY ADV SHRI.N.K.SANATH KUMAR
              R2 BY SMT. MAYA M.N., PUBLIC PROSECUTOR


       THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON

       18.02.2026, THE COURT ON 19.02.2026 DELIVERED THE FOLLOWING:
                                        2
Crl. R.P. No. 362/2021

                                                            2026:KER:14825
                                                                         'C.R'
                             JOHNSON JOHN, J.
            ---------------------------------------------------------
                          Crl. R.P. No. 362 of 2021
             ---------------------------------------------------------
                  Dated this the 19th day of February, 2026

                                  ORDER

The revision petitioner is the accused in a prosecution under

Section 138 of the Negotiable Instruments Act, 1881 ('N.I. Act' for

short).

2. The trial court convicted and sentenced the accused to undergo

simple imprisonment for two months and to pay a fine of Rs.5,00,000/-

and in default of payment of fine, to undergo simple imprisonment for

six months. It is also ordered that fine amount, if realised, shall be paid

as compensation to the complainant. The appellate court, as per

judgment dated 27.2.2021 in Crl. Appeal No. 409 of 2019, modified the

sentence to pay a fine of Rs.5,00,000/- and in default of payment of

fine, to undergo simple imprisonment for six months and also to release

the fine amount, if realised, as compensation to the complainant.

3. The main contention of the revision petitioner is that the

finding of the trial court and the appellate court regarding issuance of

statutory notice as contemplated under Section 138(b) of the N.I Act by

2026:KER:14825 the complainant is based on no evidence and therefore, he sought for

interference of this Court in revision.

4. Heard Sri. Sheji P. Abraham, the learned counsel for the

revision petitioner, Sri. N.K. Santha Kumar, the learned counsel for the

first respondent and Smt. Maya M.N., the learned Public Prosecutor for

the second respondent.

5. As per the complaint, the accused and the complainant were

colleagues for a long period in the military service and after retirement,

the accused issued Exhibits P1 and P9 cheques to the complainant

towards payment of the amount due to the complainant in connection

with a chitty transaction consequent to a complaint lodged before the

Station House Officer, Sulthan Bathery Police Station by the complainant

against the accused. According to the complainant, the matter was

settled and accordingly, the accused issued the cheques in discharge of

the amount due to the complainant in connection with the chitty

transaction.

6. It is the case of the complainant that after the dishonour of the

cheques, registered lawyer notice was issued simultaneously in the

2026:KER:14825 residential address and in the address of the accused at his place of

employment. Exhibit P4 is the copy of the statutory notice issued

regarding the dishonour of Exhibit P2 cheque and the said notice dated

04.10.2016 shows that the same is issued simultaneously to the

residential address and the office address of the accused. Exhibit P5 is

the postal receipt for issuing Exhibit P4 notice in the residential address

and Exhibit P6 is the postal receipt for issuing Exhibit P4 notice in the

official address of the accused. Exhibit P7 is the postal acknowledgment

card signed by one Sheeba K.K for receipt of Exhibit P4 notice as

authorised person in the residential address. Exhibit P8 is the track

consignment to show that the postal article as per Exhibit P6 bearing No.

RL 734093345 IN is delivered to the addressee.

7. Exhibit P11 is the office copy of the statutory notice issued to

the accused in connection with the dishonour of Exhibit P9 cheque and it

clearly shows that copies were marked in the official address of the

accused also. Exhibit P12 is the postal receipt for issuing Exhibit P11 in

the residential address of the accused and Exhibit P13 is the postal

receipt for issuing Exhibit P11 in the official address of the accused.

Exhibit P14 cover shows that the notice issued in the residential address

of the accused is re-directed to his place of work and subsequently

2026:KER:14825 returned to the sender as undelivered. Exhibit P15 is the postal track

record to show that the postal consignment as per Exhibit P13 receipt

bearing No. RL 738115466IN was delivered to the addressee.

8. The learned counsel for the revision petitioner cited the

decision of this Court in Noorudheen v. State of Kerala [2025 (6) KHC

36] and argued that in a case where the statutory notice is not served

on the accused but served to another person, it is for the complainant to

adduce evidence to show that the accused was aware of service of notice

to his relative and therefore, service of notice as per Exhibit P7 to

Sheeba K.K is not sufficient, especially when there is no evidence from

the side of the complainant that the accused was aware of service of

notice to the said Sheeba K.K.

9. The learned counsel for the first respondent/complainant

pointed out that the evidence of PW3 postman would show that the

notice was delivered to the wife of the accused and the fact that the said

Sheeba K.K is the wife of the accused is not seen denied by the accused

at the time of 313 questioning.

10. In C. C. Alavi Haji v. Palapetty Muhammed and Another

[2007 (2) KHC 932 = ILR 2007 (3) Ker. 203], the Honourable Supreme

2026:KER:14825 Court, while answering a reference in view of the decision of the

Supreme Court in D. Vinod Shivappa v. Nanda Belliappa [(2006) 6

SCC 456], held as follows:

"9 All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappa's case (supra). 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 sometime 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 S.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

2026:KER:14825 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."

11. In Alavi Haji (supra), the Honourable Supreme Court, while

clarifying the decision in Vinod Shivappa's case (supra) held thus in

paragraph 17:

"17 It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under S.138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under S.138 of the Act, cannot obviously contend that there was no proper service of notice as required under S.138, by ignoring statutory presumption to the contrary under S.27 of the G.C. Act and S.114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the 'giving of notice' in the

2026:KER:14825 context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of S.138 of the Act."

12. The learned counsel for the first respondent pointed out that

the accused herein appeared on summons served in his residential

address and he has not chosen to make payment of the cheque amount

within 15 days of the receipt of the summons and in that circumstance,

he cannot contend that there was no proper service of notice as required

under Section 138 of the N.I Act by ignoring statutory presumption to

the contrary under Section 27 of the General Clauses Act and Section

114 of the Evidence Act.

13. In State of Kerala v. Puttumana Illath Jathavedan

Namboodiri [(1999) 2 SCC 452], it was held that revisional power is

a type of supervisory jurisdiction meant to rectify injustices and it is not

the same as the appellate jurisdiction and that the revisional court