IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 CRL.A.No. 273 of 2000(A) ---------------------------------- CRA.50/1990 of II ADDL.SESSIONS COURT, KOLLAM .................... APPELLANT: ----------------- REMA SUNNY, W/O.P.O.SUNNY, EBENEZEN HOUSE, KARICODE, T.K.M. COLLEGE.P.O., KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT: ------------------- P.B.NOBLE, S/O.LATE M.P.VARGHESE, MERLYN, KADANNUKKU, KOLLAM. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 273 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2009. Judgment This appeal against acquittal is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The appellant had prosecuted the respondent herein for the offence punishable under section 138 of the Negotiable Instruments Act. The trial court found the respondent guilty and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.3,000/- with a default sentence. But the sessions Court, in appeal, reversed the order of the trial court and acquitted the respondent/accused. Hence this appeal. 2. The case of the appellant/complainant before the trial court was that the accused had issued Ext.P1 cheque dated December 31, 1994 for a sum of Rs. One lakh in discharge of a legally recoverable debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory demand notice issued by the complainant did not evoke any response; nor did the accused discharge the liability. 3. Before the trial court, Pws.1 to 5 were examined and Exts.P1 to P8 were marked on the side of the complainant. Though there was no oral evidence on the side of the defence, Exts.D1 to D5 were marked. As mentioned earlier, the trial court after evaluating the oral and documentary evidence on record , found the accused guilty and accordingly convicted and sentenced him. But the appellate court reversed the said finding and acquitted the accused. 4. In this context it is profitable to refer to the defence case set up by Crl.A.273/2000. 2 the accused before the trial court. According to the accused he had borrowed a sum of Rs.One lakh from the complainant on March 1, 1992 and issued Exts.D1 to D4 cheques for Rs.25,000/- each in discharge of the said liability. When the complainant demanded return of the money, the accused requested for some more time. However, the complainant wanted the accused to pay interest at the rate of 3.5% on the loan amount, payable from March 01, 1992 with quarterly rests. Thus calculated, the total liability came to Rs.2,01,157.36 which was rounded off to Rs. Two lakhs. As agreed between the parties, the accused issued a cheque (Ext.D5) for Rs.One lakh dated December 01, 1993. Consequently Exts.D1 to D4 cheques for Rs.25,000/= each were re- dated as 1.12.1993. But the accused could not repay the amount even on December 31, 1994. Therefore, the accused agreed to pay interest on the entire outstanding amount at the rate of 3% with monthly rests. The total liability thus calculated, came to Rs.2,93,706.76. Ext.D5 dated 31.12.1993 for Rs. One lakh was re-dated as December 31, 1994. According to the accused it was the original of the said cheque which was misused by the complainant to prosecute him in this case. 5. The learned Sessions Judge while referring to the evidence adduced by the complainant noticed that several cheques had been issued by the accused in connection with the money transaction between him and the complainant. But the learned Judge failed to take note of the fact that the accused had candidly admitted execution of the cheques in question. Similarly, accused had no case that he had had no money transaction with the complainant. The specific case of the accused, as noticed above, was that he had borrowed a sum of Rs. One lakh from the complainant in Crl.A.273/2000. 3 March 1992 and issued Exts.D1 to D4 cheques for Rs.25,000/- each with the promise that it would be returned within a stipulated time. It was yet again admitted by the accused that on his failure to return the borrowed sum, he had agreed to pay interest at the rate of 3.5% per month with quarterly rests. The total amount payable with interest admittedly came to Rs.2 lakhs. Therefore Exts.D1 to D4 cheques were re-dated and another cheque for Rs. One lakh, being the balance sum payable, was also issued. It was the said cheque that was the subject matter of the present prosecution. 6. In this context it may be noticed that the accused had yet again failed to discharge the liability and therefore the liability was recomputed adding interest on the amount that fell due. He had issued yet another cheque for a sum of Rs.1,93 705.76. The said cheque, when presented, was dishonoured. This resulted in yet another prosecution in CC.No.291/1995. In that case the respondent, accused herein, was found guilty and convicted and sentenced. The above order of conviction and sentence was confirmed in appeal by the Sessions Court also. The revision petition filed by the accused before this Court in Crl.RP.1272/2001 was heard along with this appeal. By a separate judgment the order of conviction was confirmed; but the sentence was modified. 7. I have referred to the above aspect only to indicate that the accused had no case that he had not borrowed money from the complainant or that he had not issued the cheques in question. It was admitted by the accused himself not only in the case referred to above, but also in this case as well that he had agreed to pay interest because of the delayed payment. But his only contention appeared to be that the interest calculated was unconscionable and exorbitant. The above view was repelled by this Court Crl.A.273/2000. 4 in the Crl.R.P. referred to above. 8. As rightly pointed out by learned counsel for the appellant, the accused having admitted execution of the cheque, cannot now turn round and say that the interest liability was unconscionable and that the cheque could not have been presented for encashment. In other words, the contention of the appellant that he was not liable to be prosecuted under section 138 of the Act since the cheque amount included the so called “unconscionable interest” also, cannot be sustained at all. I find considerable force in the above contention. The learned Sessions Judge, in my view, had proceeded at a tangent while dealing with the defence set up by the accused. 9. Having gone through the order passed by the trial court as well as the appellate court, I am satisfied that the view taken by the learned Magistrate is eminently justifiable. The learned sessions Judge had committed serious illegality and irregularity in interfering with the order passed by the learned Magistrate. Therefore the finding entered by the learned Sessions Judge cannot be sustained. The order of acquittal passed by the learned Sessions Judge is therefore set aside. The respondent/accused is found guilty under section 138 of the Act and he is accordingly convicted. 10. Having regard to the peculiar facts and circumstances of the case, I am satisfied that the respondent/accused can be given an opportunity to pay off the liability and that he need not be directed to suffer imprisonment. The respondent accused shall suffer imprisonment till the rising of the court and pay Rs. One lakh as compensation to be paid to the complainant under section 357(3) of the Code of Criminal Procedure. Crl.A.273/2000. 5 11. Respondent accused shall appear before the trial court on March 7, 2009 for receiving the sentence. The accused shall undergo imprisonment till the rising of the Court. He shall remit a sum of Rs. One lakh before the trial court which shall be released to the complainant as compensation under section 357(3) of the Code. 12. On appearance of the respondent, the learned Magistrate shall ensure that he undergoes imprisonment till the rising of the court. If the accused fails to appear and remit the amount as directed above, he shall suffer imprisonment for 6 months. The Crl.Appeal is disposed of in the above terms. A.K. Basheer Judge. an.