IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 CRL.A.No. 900 of 2002() --------------------------------- ST.8725/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT ---------------------------------------- JOS, S/O. MANAPPURAM POULOSE, MANAPPURAM HOUSE, VETTUKADAVU ROAD, CHALAKUDY. BY ADV. MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENTS/ACCUSED AND STATE -------------------------------------------------------- 1. N.R. SHEELAMMA ALIAS N.R.SHEELA, W/O. MENACHERI THOMAS, MANJINI HOUSE, AVITTATHUR NOW RESIDING AT MENACHERY HOSUE, ELANJIPRA, CHALAKUDY, TRICHUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R1 BY ADV. MR.U.O.JOSE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 900 OF 2002 = = = = = = = = = = = = = = = Dated this the 4th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Irinjalakuda in S.T.8725/98. It is the case of the complainant that the accused had borrowed a sum of Rs.57,000/- and towards the discharge of the same had executed Ext.P1 cheque which when presented was returned with the endorsement insufficiency of funds. Thereafter the statutory notice was issued and action was initiated. In the trial court PW1 was examined. Exts.P1 to P9 were marked. A reading of the judgment would reveal that the Court below has rendered an acquittal most probably thinking that nothing is spoken about Ext.P9 in the deposition. But at the out set I may like to point out that the complainant had deposed before Court that he had produced copy of notice and it is there before the Court. Subsequently even at that time the receipt and the Crl.A. 900 OF 2002 -2- acknowledgment card were marked as Exts.P4 and P5. It was only later that notice was produced and it appears to have been marked with consent as Ext.P9. So it was not proper on the part of the Court below to ignore Ext.P9 after admitting it in evidence and marking it as Ext.P9. A perusal of Ext.P9 would show that it is a true copy of the notice addressed to the accused and there is no dispute that such a notice has not been received. So I am afraid the Court below has gone wrong in rejecting the complaint on that technical ground. 2. So far as the merits of the case is concerned the complainant had submitted about the issuance of the cheque, the source of consideration and he had deposed that the amount was handed over from his shop and that the accused had signed the cheque and given to him. When a suggestion was put to him that it was only a cheque given by the husband of the accused as a security for the purchase of tyres it was denied by the complainant and he stated that no such tyre business was there between the accused and the complainant's husband. The Court below had accepted the Crl.A. 900 OF 2002 -3- evidence of PW1 with respect to advancement of amount, issuance of cheque and that it is towards the discharge of the liability. 3. Now Ext.P9 eventually clinches the question that the statutory notice as required under the N.I. Act had been issued and it has been received by the accused and the acknowledgment card is produced as Ext.P5. So there is absolute compliance of the statutory requirements as contemplated under the N.I. Act. Therefore the order of acquittal passed by the Court below is incorrect and it is liable to be set aside and I do so. I find that the accused had committed the guilt u/s 138 of the N.I. Act. 4. So far as the sentence is concerned I do not want to impose a sentence of imprisonment on this lady but it will be sufficient if she is directed to pay an amount as fine which shall be disbursed to the complainant. Under the amended provisions of the N.I.Act the Court is competent to award double the cheque amount as fine. Therefore the Crl. Appeal is disposed of as follows. Crl.A. 900 OF 2002 -4- (1) The order of acquittal is set aside. (2) The accused is found guilty u/s 138 of the N.I.Act and is convicted thereunder and sentenced to pay a fine of Rs.57,000/- and in default to undergo simple imprisonment for a period of two months. The amount, on realisation, shall be paid to the complainant. The lower Court shall execute the sentence if the amount is not paid on or before 16.8.2009. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 900 OF 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 900 OF 2002 = = = = = = = = = = = J U D G M E N T 4th June, 2009