IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH SEPTEMBER, 2008 / 24TH BHADRA 1930 CRL.A.No. 109 of 2003 ( CC.387/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM) .................... APPELLANT/COMPLAINANT: ---------------------------------- D.SATHYASEELAN, KUTTIYIL MEDAYIL HOUSE, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND RESPONDENTS: ACCUSED/STATE: ----------------------------------------- 1. N.ANILKUMAR, UNNEES (THEKKE VILAYIL VEEDU), MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SABU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 109 of 2003 --------------------------------------------- Dated this the 15th day of September, 2008 J U D G M E N T Aggrieved by judgment dated 5.7.2002 of the Judicial Magistrate of First Class-I, Kollam in C.C.No.387/1999 by which the accused was acquitted for the offence under Section 138 read with Section 142 of the Negotiable Instruments Act (for short the 'N.I.Act'), the appellant preferred this appeal. 2. C.C.No.387/1999 was instituted in the court below upon a private complaint filed by the appellant/complainant for the offence under Section 138 read with Section 142 of the N.I.Act. The case of the complainant is that the accused had borrowed an amount of Rs.15,000/- from the complainant on 9.11.1998 and towards the discharge of the said liability, he had issued Ext.P1 cheque dated 9.11.1998 which was proved through PW-1. It was the further case of the complainant that when the cheque was presented for encashment, the same was returned for want of sufficient fund. Exts.P2 to P4 are Crl.A. NO.109 of 2003 :-2-: the documents proving those aspects. As the amount was not paid back, the complainant sent Ext.P5 lawyer notice on 8.12.1998 and Ext.P5(a) is the acknowledgment card to prove the receipt of Ext.P5 lawyer notice by the accused. Even after the lawyer notice, no amount was paid and hence, a complaint was filed upon which the court took cognizance. The court below found that since the complainant himself had admitted that the accused had issued Ext.P1 cheque on security, the offence under Section 138 would not be attracted in this case. The trial court relied upon a decision of this Court reported in Sreenivasan v. State of Kerala [1999(3) KLT 849] for the above proposition. It is the above acquittal that is challenged by the appellant/claimant in this appeal. 2. I have heard counsel for the appellant and also counsel for the respondents. 3. On the strength of the decision of this Court reported in M/s.General Auto Sales v. Vijayalakshmi.D. [2005 CRL.L.J.1454], the learned Crl.A. NO.109 of 2003 :-3-: counsel for the appellant submits that the finding arrived at by the court below is absolutely illegal and unsupported by any authority and contrary to the provisions contained in the N.I.Act. Relying upon the decision of the Apex Court reported in I.C.D.S.Ltd. v. Beena Shabeer and another [2002 CRL.L.J. 3935], this Court had held that the cheque given by a guarantor, when bounced, was found to be within the scope of Section 138 of the N.I.Act. This Court had also held that necessarily, the cheque given as a security when bounced would be the subject matter of prosecution under Section 138 of the N.I.Act. So, the contention of the accused that Ext.P1 cheque was given only as a security will not enable him to escape from the clutches of law. The Apex Court in I.C.D.S.Ltd's case (cited supra) had held that the cheque issued by a guarantor cannot be said to have not been issued for the purpose of discharging any debt or liability and therefore, the complaint under Section 138 for its dishonour is maintainable. The above legal position is Crl.A. NO.109 of 2003 :-4-: not disputed by counsel for the respondents. Therefore, I am of the view that the finding arrived on by the court below is not correct and the same is liable to be set aside. 4. In the result, the judgment of the trial court is set aside and the order of the acquittal of the accused is also set aside allowing this Crl.Appeal. The trial court is directed to take the complaint on file and to dispose of the same in accordance with law and on merit after giving opportunity to both the parties to substantiate their contentions and if necessary, to adduce evidence, if they are so advised. The parties are directed to appear before the court below on 31st October, 2008. The appeal is accordingly allowed. There will be no order as to costs. V.K.Mohanan, Judge MBS/ Crl.A. NO.109 of 2003 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- Crl.A. NO.109 of 2003 :-6-: O R D E R DATED: -6-2008 Crl.A. NO.109 of 2003 :-7-: