IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 395 of 2003()
1. VIJAYADHARAN P.K.,
... Petitioner
Vs
1. K.R.VINOD, S/O.RAMAKRISHNAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.E.C.BIJU
For Respondent :SRI.JIJO PAUL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :24/07/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.395 OF 2003
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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
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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
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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
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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
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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
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