IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.A.No. 761 of 2002() --------------------------------- CRA.268/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.60/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT/ COMPLAINANT: ---------------------------------------------- K.V.JACOB, S/O. VARGHESE, KOOTHUR HOUSE, CHIRALAYAM, P.O.KUNNAMKULAM. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH RESPONDENTS/ ACCUSED & STATE: ----------------------------------------------------- 1. RAJA PAUL, MANAGING PARTNER, ARIMBOOR ENTERPRISES, `L' SHAPE BUILDING IN FRONT OF KUNNAMKULAM BUS STAND, KUNNAMKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JIJO PAUL FOR R1 SRI. C. M. NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.761 OF 2002 ------------------------------ Dated this the 27th day of May, 2009 JUDGMENT This is an appeal preferred against the judgment rendered by the Sessions Judge (Adhoc) Fast Track Court-I, Thrissur in Crl.A.No.268/2000. The brief facts necessary for the disposal of the appeal are stated as follows: 2. It is the case of the complainant that the accused did owe an amount of Rs.7,500/=, 20,000/= and 20,000/= on the basis of F.D. receipts and a further sum of Rs.23,.750/= towards the amount due under the chitty. In spite of repeated request, it was not given and ultimately he had issued a cheque with interest as well to the tune of Rs.1,10,000/= which when presented for encashment returned with the endorsement of insufficiency of funds. Statutory notice was issued and thereafter prosecution was launched. The defence appears to be that the complainant had coerced the accused with the aid of police and got the cheque 2 Crl.ANo.761/02 executed. The trial court did not find in favour of the defence held him guilty under Section 138 of the N.I.Act and sentenced him to undergo imprisonment for a period of three months and to pay a compensation of Rs.1,10,000/= under Section 357(3) of the Criminal Procedure Code. Against that decision, an appeal was preferred and the learned Sessions Judge reversed the decision of the trial court and strangely applied a modality for calculating the interest for the amount and found that it will not come to Rs.1,10,000/= and therefore disbelieved the version of PW1 and acquitted the accused. It is against that decision, the present appeal is preferred. 3. Heard learned counsel for the appellant as well as the respondents. The case of the complainant is that amount is due to him under three fixed deposit receipts with 12% interest plus an amount of Rs.23,750/= outstanding as the amount deposited in a chitty conducted by the accused. The version of the complainant is that when a demand was made taking into consideration the entire facts inclusive of 3 Crl.ANo.761/02 interest, the accused issued a cheque for Rs.1,10,000/=. The appellate court very strangely attempted to calculate interest for the amount due and non suited the complainant. It is absolutely incorrect. There is no such defence at all for the accused and further, when a demand was made in the form of a notice, Ext.P11 was the reply wherein the only prayer was to grant time for payment and not to initiate prosecution. In otherwords, the accused had never disputed about the quantum that is due to the complainant. The case of the accused is that using the influence of the police, he had been coerced to execute a cheque for Rs.1,10,000/=. Except for the mere contention of the accused, no material is forthcoming in that regard. In order to substantiate that contention, the accused took the risk of examining the wife of the complainant. She turned hostile and she had categorically asserted before the court that to her knowledge no complaint has been filed before the police and there was no exertion of pressure to get the cheque executed with the help of the police. So, the witness cited by the defence had turned 4 Crl.ANo.761/02 hostile to the accused. So, the materials available would indicate that the accused had issued a cheque for discharge of the liability which when presented for encashment returned with the endorsement of insufficiency of funds and thereafter complied with the statutory requirements, action has been initiated. So, it was not proper on the part of the appellate court to have reversed the considered judgment of the trial court. 4. Therefore the judgment passed by the appellate court is liable to be set aside and I do so. The next question arises regarding the sentence to be imposed. it is true that the transaction is of the year 1997. There is no point in sending the accused to the prison if he makes the payment. By virtue of the amendment of the N.I.Act, even the first court is empowered to levy a fine which may extend to double the cheque amount. Exercising that power, I feel that justice can be met by imposing the fine instead of prison Therefore, the appeal is disposed of as follows: (1). Judgment of the appellate court is set aside. 5 Crl.ANo.761/02 (2). The accused is found guilty under Section 138 of the N.I. Act and he is convicted and sentenced to pay a fine of Rs.1,10,000/=which on realisation shall be disbursed to the complainant. In default of payment of fine, the accused is directed to undergo S.I for a period of three months. The accused shall pay the fine on or before 15.8.2009, failing which the trial court shall execute the sentence as contemplated under law. The Criminal Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE cl 6 Crl.ANo.761/02 7 Crl.ANo.761/02 beat