IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 CRL.A.No.380 of 2001(B) ------------------------------ ST.264/1998 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... APPELLANT/COMPLAINANT: --------------------------------- MUHAMMED RAFI, S/O ABDUL WAHAB, RAMANATHAPURAM, PALAKKAD. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.K.P.SANTHI RESPONDENT/ACCUSED: ---------------------------- NOORMOHAMMED, SON OF MOHAMMED JAMAL RAWTHER, 17/609, BEHIND CIVIL LANE, PALAKKAD. BY ADV. SRI.P.R.VENKETESH PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.380 of 2001 ------------------------------------------------ Dated this the 28th day of February, 2008 JUDGMENT This is appeal filed with leave assailing the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act. It was repeatedly being submitted by the counsel for the respondent when the matter was coming up for hearing that the respondent is ready to make payment but despite that, payment was not being made. Consequently, the first respondent was directed to appear in person. On his appearance in person, he submitted that he is prepared to make payment of the cheque amount before 28/02/08 and it was accordingly, that he was allowed time till 28/02/08 to make payment with a further direction that in case of failure the order of acquittal shall stand reversed and appropriate sentence will be passed against the appellant on that day viz.28/02/08. Crl. Appeal No.380 of 2001 -2- 2. The first respondent has no case that the statutory formalities required for the maintainability of a complaint under Section 138 of the N.I. Act does not stand complied with or that the dishonour of the cheque was not for reason of “insufficiency of funds” in his account to honour the said cheque. The fact that the cheque was issued in discharge of debt stands admitted. Hence, offence under Section 138 of the N.I. Act stands made out. The judgment impugned, acquitting the first respondent, therefore, deserves to be reversed. 3. In the result, I set aside the judgment under appeal and convict the first respondent of offence punishable under Section 138 of the N.I. Act finding him guilty of the offence punishable under the said section. For questioning the respondent regarding the sentence posted to 06/03/08. K.P.BALACHANDRAN, JUDGE kns/- Crl. Appeal No.380 of 2001 -3- This appeal is posted to this day for questioning the first respondent regarding the sentence. Counsel on both sides submit that the parties have settled the matter out of court after pronouncing of judgment by this Court on 28/02/08. In the circumstances, I sentence the first respondent to pay a fine of Rs.2,000/- only and in default to undergo simple imprisonment for five days. The fine amount shall be paid positively in one month. In case of failure, the court below shall enforce the sentence against the respondent. K.P.BALACHANDRAN, Judge 06/03/08