IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 CRL.A.No. 344 of 2001 ------------------------------------ CC.45/1999 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT/COMPLAINANT: JOSE ANTONY, S/O K.J.ANTONY, MANAGING DIRECTOR, M/S.DEEPTHI INVESTMENTS AND FINANCIERS, KILLIPALAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENTS/ACCUSED & STATE: 1. SATHY DEVI, D/O DIVAKARAN NAIR, AGED 42, M/S.J.L.ENTERPRISES, T.C.NO.28/812, PUNNAPURAM, FORT P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRIP.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 344 of 2001 --------------------------- JUDGMENT Heard the learned counsel for the appellant and the learned Public Prosecutor for the second respondent. The first respondent has not entered appearance despite notice. 2. The court below was acquitting the first respondent under Section 255(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the Act') for the reason that offence under Section 138 of the Act will not be attracted in a case where, cheque is issued as security by a surety for a loan advanced in favour of the principal debtor and in the instant case, her husband himself. The order was passed based on the decision in Sreenivasan v. State of Kerala (1999 (3) KLT 849). The said decision has been subsequently overruled by the Apex Court in I.C.D.S. Ltd. v. Beena Shabeer (2002 CRA 344/01 2 (3) KLT 218). Therefore, the cheque issued by the first respondent also is one that falls within the scope of Section 138 of the Act. Consequently, this appeal deserves to be allowed, setting aside the order of acquittal of the first respondent and the case remanded back to the court below for consideration afresh, according to law. In the result, I set aside the order of acquittal assailed in this appeal and remit the case back to the court below for disposal afresh, according to law, in view of the observations made above. The case shall stand posted in the court below to 11.3.2008. The appellant shall appear in the court below positively on that day. 5th February, 2008 (K.P.Balachandran, Judge) tkv CRA 344/01 3 K.P.Balachandran, J. --------------------- Crl.A.No.344 of 2001 --------------------- JUDGMENT 5th February, 2008