Crl.M.C. No.10430/2024 1 2025:KER:18734 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946 CRL.MC NO. 10430 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN ST NO.1496 OF 2023 OF SPECIAL COURT OF JUDICIAL FIRST CLASS MAGISTRATE FOR THE TRIAL OF CASES UNDER SECTION 138 OF NI ACT, 1881, KOZHIKODE PETITIONER/ACCUSED NOS.1 TO 3: 1 THE BISHOP HOUSE FOUNDATION NO. 88, KOTHANUR OLD POLICE STATION ROAD, GUBBI CROSS, BYRATHI, BANGALORE REPRESENTED BY AUTHORISED REPRESENTATIVE REV. SAM JOHN , C/O BINDU SAM, NADUVEETIL , PATHNAPURAM P O , PAMPADI, KOTTAYAM DISTRICT, PIN - 560077 2 MR. DAVID V LUKOSE, AGED 58 YEARS THE CHAIRMAN, THE BISHOP HOUSE FOUNDATION BISHOP, VARAVU KALAYIL, CHOLLAMAKKAL VEEDU, NILAM PODINJA, NEDUMKUNNAM, KOTTAYAM DISTRICT, PIN - 686542 3 MR. REV. SAM JOHN, AGED 72 YEARS AUTHORISED REPRESENTATIVE OF BISHOP’S HOUSE FOUNDATION , C/O BINDU SAM, NADUVEETIL , PATHNAPURAM P O , PAMPADI, KOTTAYOM DISTRICT, PIN - 686502 BY ADVS. M.T.SURESHKUMAR N.MANU THAMPI MANJUSHA K SREELAKSHMI SABU Crl.M.C. No.10430/2024 2 2025:KER:18734 RESPONDENT/ COMPLAINANT & STATE : 1 K. BOVAS, AGED 61 YEARS S/O KUNJUKUNJU O, ANUGRAHAM –H, PUTHIYAPALAM, PUTHOYARA P O, KOZHIKODE, PIN - 673004 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV K.ARJUN VENUGOPAL OTHER PRESENT: SR.PP.PUSHPALATHA M.K. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. No.10430/2024 3 2025:KER:18734 ORDER The petitioners are accused Nos.1 to 3 in S.T.No.1496 of 2023 pending on the files of the Special Judicial First Class Magistrate-VII, (NI Act Cases), Kozhikode. The complaint is filed by the 1st respondent alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act by the petitioners. The allegations in the complaint are to the following effect; 2. After collecting an amount of Rs.5 lakhs from the 1st respondent by promising to secure admission for his daughter to Medical P.G. course with an assurance that the amount will be returned if the 1st respondent’s daughter fails to clear NEET examination, accused failed to secure the admission and did not also repay the amount of Rs.5 lakhs. Instead, they issued a cheque for Rs.5 lakhs which, on presentation, was dishonoured for insufficiency of funds. Thereafter, only an amount of Rs.1,50,000/- was repaid and the statutory notice issued under Section 138(b) of the NI Act did not evoke any positive response. 3. The learned counsel for the petitioners contended that the complaint and further proceedings are an abuse of process of court, since Rs.1,50,000/-, out of the cheque amount of Rs.5 lakhs, had been repaid prior to the issuance of statutory notice. Referring to Annexure A3 notice, it is submitted that in spite of acknowledging payment of Rs.1,50,000/-, demand in the notice is for payment of the entire cheque amount. It is contended that as per Section 138 of the Negotiable Crl.M.C. No.10430/2024 4 2025:KER:18734 Instruments Act, demand can only be for payment of the debt which is legally enforceable. In the case at hand, the legally enforceable debt was only Rs.3.5 lakhs and therefore, the demand for Rs.5 lakhs was untenable. As such, the petitioners were not liable to satisfy the demand and their failure did not give rise to the cause of action for filing the complaint. 4. According to the learned counsel for the 1st respondent, the demand in the statutory notice was only for Rs.3.5 lakhs, as discernible from the manner in which the notice is worded. In support of this argument, reference is made to the last sentence in Paragraph 2 of the notice, wherein the 1st respondent has acknowledged receipt of Rs.1,50,000/- as part payment. It is the submission of the learned counsel that the demand in Paragraph 4 is only for the payment of balance amount of Rs.3,50,000/-. It is argued that the notice should be read as a whole and not by picking stray sentences therein. In support of this contention, reliance is placed on the decision of this Court in Surendra Das B. v. State of Kerala and another [2019 (3) KHC 105]. Finally it is argued that the contentions now put forth cannot be countenanced, since the petitioners failed to pay the balance amount of Rs.3.5 lakhs also. 5. Answer to the contentions put forth by the counsel on either side would depend on the interpretation, or understanding of the wordings in Annexure A3 notice. While the 1st respondent has acknowledged receipt of Rs.1,50,000/- as part payment, the demand is Crl.M.C. No.10430/2024 5 2025:KER:18734 for the entire amount of Rs.5 lakhs. Whether the demand is for the entire cheque amount of Rs.5 lakhs or for the balance amount of Rs.3.5 lakhs would depend upon the evidence tendered by the parties. It will be inappropriate for this Court to pre-empt the parties from tendering evidence by deciding the issue on interpretation of the expressions used in the notice. The Crl.MC is hence dismissed, without prejudice to the right of the parties to tender evidence and raise all contentions before the Trial Court. sd/ V.G.ARUN JUDGE jm/ Crl.M.C. No.10430/2024 6 2025:KER:18734 APPENDIX OF CRL.MC 10430/2024 PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE COMPLAINT DATED 8/8/2023 IN ST NO. 1496 OF 2023 PENDING ON THE FILES OF THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT, (NEGOTIABLE INSTRUMENT ACT CASES), KOZHIKODU Annexure A2 TRUE COPY OF THE CHEQUE ALLEGEDLY ISSUED BY THE 1ST ACCUSED UNDER THE SIGNATURE OF THE 3RD ACCUSED DATED 19/4/2023 Annexure A3 TRUE COPY OF THE DEMAND NOTICE DATED 11/7/2023 RESPONDENT ANNEXURES Annexure-1 True copy of FIR No. 207/2022 dated 07.03.2022 of the Mannuthy Police Station. Annexure-2 Interim order dated 17.6.2022 of this Honourable Court in Crl.MC No. 3878 of 2022.