IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 CRL.A.No. 117 of 2003 ------------------------ CC.241/2002 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT/COMPLAINANT: ------------------------- M/S.INDIA CEMENTS CAPITAL & FINANCE LTD. VETTOOR BUILDING, SASTRI ROAD, KOTTAYAM - 1, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER, AND POWER OF ATTORNEY HOLDER V.M.THOMAS. BY ADV. SRI.KOSHY GEORGE SRI.GEORGE ZACHARIAH ERUTHICKEL RESPONDENT/ACCUSED: ---------------------- 1. BABU JOSEPH, NJATTAMOZHUKAUIL, ANJOOTTIMANGALAM.P.O., PLASSANAL, PALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JAMES KURIA FOR R1 PUBLIC PROSECUTOR : SRI C M NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20 /07/2009, THE COURT ON 20/07/2009 DELIVERED THE FOLLOWING: M N KRISHNAN, J ---------------------------------------- Criminal Appeal No. 117 of 2003 --------------------------------------- Dated this 20th day of July 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.241 of 2002 on the file of the Chief Judicial Magistrate, Kottayam. It is the case of the complainant that the accused had availed a hire purchase facility and towards the payment of the instalments had issued cheques which when presented for encashment returned with the endorsement of insufficiency of funds. Notice was issued which was not replied and later prosecution was launched. 2. On the contra, the accused would contend that he had only given two cheques as security for the transactions which had been utilized by the complainant to file a false case. Two cases are filed as C.C.Nos.241 and 242 of 2002 The present appeal had arisen out of C.C.No.241 of 2002 and so far as it relate to C.C.No.242 of 2002 is concerned the special leave has been granted but nothing subsequent to that is seen to be done as per the office file available. So I confine my discussion to C.C.No.241 of 2002. Ext.P2 is the document which will throw light on this case. The accused had entered into a transaction with Aruna Sugars Finances Ltd on 15-02-1997. He had purchased a vehicle on hire purchase agreement and as per the terms of the agreement he has to pay a sum of Rs.501075/- commencing Crl.R.A.No.117 of 2003 2 from 15-02-1997 to 15-01-1999, that is 24 instalments. It is this Aruna Sugar Finances Ltd that had been changed into India Cements Capital and Finance Ltd and it is evidenced by documents. According to the complainant amount due for the 20th and 21st instalments had been paid by way of cheque which when presented for encashment returned with insufficiency of funds. The defence had taken up a contention that the vehicle was repossessed and so by the virtue of the terms of the agreement the liability to pay the amount does not arise after repossession of the vehicle. The court below found that nothing is available before the court to show that the vehicle had been repossessed. But the complainant was non suited on the ground that as per Ext.P2 the amount shown is Rs.20825/- were as the cheque amount is Rs.21775/- and therefore it does not represent the proper amount. The learned counsel for the appellant had argued before me that the said amount represents the amount on account of the delayed payment as well as the insurance premium and therefore the court erred in rejecting the case on that ground. The difference is only Rs.900/- and stands to reason and there is a clause 60 under the Ext.P2 which provides for 36% interest for default payment of the instalments. So by virtue of Ext.P2 the accused is bound to pay the amount to the complainant in 24 equal instalments of and he has committed default. The cogent evidence regarding the purchase of a Crl.R.A.No.117 of 2003 3 vehicle on the hire purchase system coupled with the agreement to pay the instalment supported by the issuance of the cheque lends credence to the case of the complainant and the story of issuing two cheques as security does not appeal to the conscience at all. The outstanding amount that is due under the hire purchase agreement is more than Rs.500000/- where as the cheques represent a very small sum. The story of a security cannot be accepted and therefore I disagree with the court below on that finding. I find the accused had issued the cheque towards the discharge of the liability which when presented for encashment returned for insufficiency of funds. Therefore he has committed offence under section 138 of the Act. Now turning to the question of sentence there is no point in sending the person to jail if he is prepared to pay the amount. Therefore in the fitness of things there shall be a direction to pay the fine which on realization shall be disbursed to the complainant. In the result the criminal appeal is allowed as follows: (1)The order of acquittal is set aside and the accused is found guilty under section 138 of the Negotiable Instruments Act. (2)He is sentenced to pay a fine of Rs.21775/- which on realisation shall be disbursed to the complainant. If the amount is not paid the accused shall undergo default sentence of two months imprisonment. Crl.R.A.No.117 of 2003 4 (3)If the fine is not paid on or before 30-09-2009 the lower court shall execute the sentence. M N KRISHNAN, JUDGE Sbna/