IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 CRL.A.No. 1233 of 2001 -------------------------------------- CC.251/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT/COMPLAINANT: M/S.FINCON, I FLOOR, MORNING STAR BUILDING, KACHERIPADI, KOCHI - 18 REP. BY ITS MANAGING PARTNER THOMAS GEORGE. BY ADV. SRI.KOSHY GEORGE RESPONDENTS/ACCUSED: 1. BABY SCARIA, MANAGING PARTNER, M/S.FINCON INVESTMENTS, CHIRAYATH BUILDING. T.K.ROAD, THIRUVALLA, RESIDING AT KAVALAM PUTHENVEEDU, MUNTHIRIKAVALA, PARELPALLI, CHANGANACHERRY. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JOSEPH J.THAYAMKERIL SRI.JERIN JACOB PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008 ALONG WITH CRMC NO. 4980 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No.1233/2001 & Crl.M.C.No.4980/2001 --------------------------- JUDGMENT Crl.A.1233/2001 This is appeal filed with leave by the complainant in C.C.No.251/98 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam assailing the acquittal of the first respondent under Section 255(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. In the course of final hearing in the case, learned counsel for the appellant, when confronted with Exhibits D22 and D23 notices, admitted that it is true that the cheque had been presented earlier and notice had been issued to the first respondent and no complaint was filed after the issuance of notice and complaint was filed after issuing notice as mandated by proviso (b) to Section 138 of the Negotiable Instruments Act, only when the cheque was dishonoured a second time, as the appellant was CRA 1233/01 & CRMC 4980/01 2 under the impression that the notices issued in the first instance had not been served, as he had not received the acknowledgment cards and that inasmuch as it has come out in evidence, by production of Exhibits D22 and D23 notices, that cause of action had arisen consequent on issuance of notice pursuant, to dishonour of the cheque in the first instance, a second cause of action will not arise on issuance of notice when the cheque is dishonoured a second time and that therefore, the appeal itself may not be maintainable on merits. Counsel for the appellant submits, therefore, that the appeal need not be considered on merits, as the maintainability of the complaint itself cannot be canvassed in view of Exhibits D22 and D23 notices. In view of the said submission, I confirm the acquittal of the first respondent by the court below and dismiss this appeal. CRA 1233/01 & CRMC 4980/01 3 Crl.M.C.4980/01 This Crl.M.C. is filed by the petitioner assailing the proceedings initiated by the court below vide M.C.No.3/01 in C.C.No.251/98 under section 250 of the Cr.P.C., for prosecuting the petitioner for having filed complaint under Section 138 of the Negotiable Instruments Act, without reasonable cause and having dragged the first respondent to court, causing him to face trial for the last more than four years. 2. Counsel for the respondent submits that the petitioner shall be ordered to pay at least an amount of one rupee as compensation to the respondent, as the respondent was unnecessarily dragged to court by filing a complaint, which is not maintainable. The submission of the counsel for the first respondent cannot be ignored especially when the first respondent has brought to light that the complaint was being filed and was being prosecuted for a period of about four years, when CRA 1233/01 & CRMC 4980/01 4 actually no cause of action at all had arisen, as the cheque was being dishonoured a second time and no complaint had been filed when cause of action for filing a complaint under Section 138 of the Negotiable Instruments Act arose on the first dishonour. In the result, I allow this Crl.M.C. and quash the proceedings in M.C.No.3/01 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam, but, all the same, direct that petitioner shall pay the cost in this Crl.M.C. to the respondent. 13th March, 2008 (K.P.Balachandran, Judge) tkv CRA 1233/01 & CRMC 4980/01 5 K.P.Balachandran, J. ----------------------- Crl.A.No.1233 of 2001 & Crl.M.C.No.4980 of 2001 ----------------------- JUDGMENT 13th March, 2008