IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 CRL.A.No. 223 of 2002() ----------------------- ST.NO.6639/1998 ON THE FILE OF THE JUDL.MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT IN CRL.A:-COMPLAINANT IN S.T: -------------------------------------------------- SHAJU, S/O. ARAKKAPADAN VARGHESE, ARAKKAPPADAM HOUSE, MANALI, P.O. CHITTISSERY - 680 301. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT NO.1 IN CRL.A.-NOT PARTY TO S.T./RESPONDENT No.2 IN CRL.A – ACCUSED IN S.T: --------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.P. PAULSON, S/O. PORINCHU, ALUKKA HOUSE, THALORE. BY PUBLIC PROSECUTOR SRI.AMJETH ALI ADV. SRI.K.G.BALASUBRAMANIAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal.No.223 of 2002 ========================== Dated this the 29th day of February, 2008 JUDGMENT Appellant/complainant had prosecuted respondent No.2 herein for an offence punishable under Section 138 of the Negotiable Instruments Act, before the Judicial Magistrate of First Class, Irinjalakuda. The case of the complainant was that the accused had borrowed a sum of Rs.50,000/- from him agreeing to repay the same very soon. When demand was made for repayment, the accused had issued Ext.P1 cheque dated January 25, 1998. But, when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued by the complainant, the liability was not discharged. The accused had also not bothered to send any reply to the notice. It was in the above circumstances, that the appellant/complainant had launched the prosecution against the accused. Crl.A.No.223/2002 2 2. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. There was no oral or documentary evidence on the side of the accused. 3. The learned Magistrate held that Ext.P1 cheque was issued by the accused in discharge of a liability as contended by the complainant. It was also held that the cheque was dishonoured due to insufficiency of funds in the account of the accused. However, the learned Magistrate proceeded to hold that the complainant had not established that he had made a demand for repayment of the cheque amount as contemplated under the statute. According to the learned Magistrate, the complainant had not made a specific averment in the complaint that he had in fact demanded payment from the accused after dishonour of the cheque. The learned Magistrate also adopted a strange view that there was no averment in the complaint that the accused had failed to pay the amount even in spite of issuance of the statutory demand notice. I am afraid, the above reasoning and conclusion made by the learned Magistrate are wholly untenable and unsustainable. A perusal of the copy of Ext.P4, lawyer notice which was admittedly received by the Crl.A.No.223/2002 3 accused will undoubtedly show that the complainant had informed the accused that the cheque issued by him had been dishonoured. The complainant had in unequivocal terms made a demand to the accused to pay the cheque amount. More importantly, the complainant who was examined as PW1 had deposed before the court that the accused had failed to pay the amount in spite of service of the demand notice. Viewed from any angle, the reasoning of the learned Magistrate cannot be sustained at all. Having perused the materials available on record I have no hesitation to hold that offence under Section 138 of the Negotiable Instruments Act had been clearly established. But in the peculiar facts and circumstances of the case, I am satisfied that the case has to be remitted back to the court below with a direction to pass an appropriate order of sentence after hearing the accused. 4. Therefore the judgment of acquittal is set aside. The case is remitted to the court below. The learned Magistrate shall pass an appropriate order of sentence in the case after hearing the accused. This shall be done as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of Crl.A.No.223/2002 4 this judgment. The complainant and accused shall appear before the court below on March 24, 2008. Appeal is allowed. A.K.BASHEER,JUDGE dvs