IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRL.A.No. 395 of 2003() ------------------------------------ CC.896/1999 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... APPELLANT(S): COMPLAINANT ------------------------- VIJAYADHARAN P.K., S/O.KUNJAYAPPAN, POORADAN (H) THALIKULAM, CHAVAKKAD, THRISSUR DISTRICT. BY ADVS. MR.E.C.BIJU MR.BIJU ABRAHAM RESPONDENT(S): ACCUSED STATE ---------------------------- 1. K.R.VINOD, S/O.RAMAKRISHNAN NAIR, KALAPURACKAL (H), KALLUMPARA (PO.) PANANGATTUKARA, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.JIJO PAUL BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.395 OF 2003 ------------------------------ Dated this the 24th day of July, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.896/1999 of JFCM-III, Trichur. It is the case of the complainant that the accused had issued a cheque towards the discharge of the liability of kuri instalments due from his brother Anil Kumar which when presented for encashment, returned with the endorsement of insufficiency of funds. Notice was issued and though it was received, no reply was sent. Thereafter prosecution was launched under Section 138 of the N.I. Act. 2. The case of the accused appears to be that at the time of execution of the bond, four cheques were given and it has been utilised by the complainant to file the case. The court below acquitted the accused on the ground that in the notice the date shown for the default is 24.2.1999 and that no civil suit has been instituted. A perusal of the document produced in this case would reveal that the date shown in 2 CRL.A.NO.395/03 the notice is 24.2.1999. When PW1 was examined, he would depose that it is only a mistake. It was from 24.2.1998. The court below held that if the date is 24.2.1997, the amount shown would be higher and therefore, non suited the complaint. 3. I am afraid that such a technical approach should not have been made by the court below for the following reasons. It is true that brother of the accused had joined a kuri and bid the kury in auction and along with his mother and the accused had executed a bond for further payment and the said bond had been produced before the court and it would reveal that future instalments of Rs.72,000/= has to commence from 24.8.1996 for 24 months which will be over on 24.8.1998. The accused had signed that document. So, he is totally aware of the fact that the termini of the instalment is on August, 1998. 4. The case spoken to by PW1 that only a mistake that it was shown as 24.2.1999 in stead of 24.2.1998. This appears to be correct for the reason that even the last 3 CRL.A.NO.395/03 instalment would have been over by 24.8.1998. A notice had been issued and if there was a mistake, the accused could have sent a reply pointing out the same. When he questioned under Section 313 of Cr.P.C and when he had made his statement voluntarily, he had never spoken about the incorrectness of the amount but had only stated that blank cheques had been utilised for the purpose of the case. Therefore, the said approach of the court below is erroneous which requires to be interfered with. 5. The other reason stated by the court below is that the complainant has not filed a civil suit at all and it is for the party when a cheque is issued, to decide whether he must proceed on the basis of the cheque against the principal debtor. So, it also cannot be a ground for disbelieving the claim of PW1. So, the facts are crystal clear that the accused as a surety had executed the cheque for the amount taken and when it was presented, it returned with endorsement of insufficiency of funds and that prosecution has been launched after due notice. So, I find that the accused is guilty 4 CRL.A.NO.395/03 of the offence under Section 138 of the N.I. Act and is to be convicted there under. 6. So far as the sentence is concerned, there is no need to send him to jail for a long term, if he is prepared to pay the amount. I feel, interest of justice can be met by sentencing the accused to undergo imprisonment till the rising of the court and to pay the compensation of Rs.16,600/= and on payment of the same, let it be disbursed to the complainant on proper application. In case of default, the accused shall undergo simple imprisonment for six weeks. 7. In the result, the criminal appeal is disposed of as follows: 1. The order of acquittal is set aside and the accused is found guilty under Section 138 of the N.I. Act. 2. He is sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs.16,600/= as compensation under Section 357(3) of the Code of Criminal Procedure and in default, to undergo S.I for 6 weeks. When the compensation is paid or realised, it shall be disbursed to the complainant on 5 CRL.A.NO.395/03 proper application. 3. The accused shall present himself before the court to receive the sentence and to pay compensation on 30.9.2009 failing which the court below shall execute the sentence. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.395/03 7 CRL.A.NO.395/03