Kerala High Court
Ramakrishna Pillai vs Vijayakumary on 30 September, 2024
CRL.A NO. 103 OF 2007 1 2024:KER:72758
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.A NO. 103 OF 2007
AGAINST THE ORDER/JUDGMENT DATED 14.12.2006 IN Crl.L.P.
NO.641 OF 2006 OF HIGH COURT OF KERALA ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CC NO.578 OF 2001 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, SASTHAMCOTTA
APPELLANT/COMPLAINANT:
RAMAKRISHNA PILLAI
S/O. KESAVAN NAIR, SREEVIKAS VEEDU,, THURITIKKARA MURI,
KUNNATHOOR, KUNNATHOOR TALUK.
BY ADV K.S.MANU (PUNUKKONNOOR)
RESPONDENTS/ACCUSED & STATE:
1 VIJAYAKUMARY,
D/O. KOCHUKUTTAN
VAYLITHARA VEEDU, PERINADU MURI,, CLAPPANA VILLAGE,
KARUNAGAPPALLY TALUK.
2 STATE OF KERALA, REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV SMT.RESHMA LESLIE
OTHER PRESENT:
PP-SMT.SEENA C.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 103 OF 2007 2 2024:KER:72758
JUDGMENT
This appeal is at the instance of the complainant in CC No.578 of 2001 on the file of Judicial First Class Magistrate court, Sasthamcotta, challenging acquittal of the accused, in a complaint filed by him under Section 138 of the Negotiable Instruments Act (N.I.Act for short).
2. The case of the appellant/complainant was that, the accused borrowed Rs.2,80,000/- from him, and towards discharge of that debt, he issued Ext.P1 cheque dated 1/6/2001 assuring him that it would be encashed on presenting before the bank. But it was returned dishonored for the reason 'funds insufficient' on 13/7/2001, as per Exts.P2 and P3 cheque return memo. Thereafter, he sent registered lawyer notice to the accused. Though that notice was received by the accused, no reply was sent, and the amount was not returned. Hence, he filed the complaint under Section 138 of NI Act.
3. On taking cognizance and on appearance of the accused CRL.A NO. 103 OF 2007 3 2024:KER:72758 before the trial court, particulars of offence was read over and explained to which she pleaded not guilty and claimed to be tried.
4. PW1 was examined and Exts.P1 to P6 were marked from the side of the complainant.
5. On closure of evidence of the complainant, the accused was questioned under Section 313 of Cr.P.C. She denied all the incriminating circumstances brought on record.
6. Dws 1 to 3 were examined and Exts.D1 to D6 were marked from defence side.
7. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found that the complainant could not prove an offence punishable under Section 138 of NI Act against the accused, and so, she was acquitted under Section 255(1) of Cr.P.C against which the complainant has preferred this appeal.
8. Heard learned counsel for the appellant/complainant and CRL.A NO. 103 OF 2007 4 2024:KER:72758 learned counsel for the 1st respondent/accused.
9. Pending appeal, the parties were referred for mediation at District Mediation Centre, Kollam, where they entered into a settlement agreement by which the 1st respondent/accused agreed to pay Rs.2,00,000/- to the appellant/complainant, out of which Rs.75,000/- was paid to the appellant on 5/8/2019. The balance Rs.1,25,000/- was agreed to be paid on or before 30/12/2019, and in default reserving the right of the appellant to realize Rs.2,80,000/- with interest from the accused.
10. Learned counsel for the appellant submitted that the balance amount of Rs.1.25,000/- was never paid by the 1st respondent as agreed in the mediation agreement. So he is intending to prosecute this appeal.
11. The evidence adduced by PW1 coupled with Exts P1 to P6 documents were sufficient to show that the appellant had advanced Rs.2,80,000/- to the 1st respondent on 1/5/2001, and towards discharge of that debt, she issued Ext.P1 cheque dated CRL.A NO. 103 OF 2007 5 2024:KER:72758 1/6/2001. Since that cheque was dishonored for the reason 'insufficient funds' after completing the statutory formalities, he filed complaint against the accused under Section 138 of NI Act. The testimony of DWs 1 to 3 relied on by the trial court to acquit the accused is given a go bye, when the accused himself admitted her liability, and agreed to pay the amount to the appellant/complainant in the mediation settlement.
12. Though the 1st respondent/accused made part payment of the amount arrived at in the mediation settlement dated 30/12/2019, she failed to pay the balance amount on or before 30/12/2019 as agreed in the mediation settlement.
13. Available facts and evidence are sufficient to hold that the 1st respondent/accused committed an offence punishable under Section 138 of NI Act. So the acquittal of the accused by the trial court is liable to be reversed. So she is found guilty under Section 138 of NI Act, and convicted and sentenced to undergo simple imprisonment for one day till rising of the court, CRL.A NO. 103 OF 2007 6 2024:KER:72758 and to pay compensation of Rs.1,25,000/- with a default sentence of simple imprisonment for three months.
14. The 1st respondent/accused is directed to appear before the trial court on or before 30/10/2024 to receive the sentence, and to pay the compensation amount to the complainant/appellant. If the complainant is absent to receive the compensation amount, the accused can deposit that amount before the trial court. If the accused fails to appear, as directed above, the trial court has to take steps for executing the sentence without further delay.
15. Registry to transmit copy of this judgment along with the trial court records forthwith, for expediting execution of the sentence, by the trial court .
The appeal stands allowed to the extent as above.
Sd/-
SOPHY THOMAS, JUDGE ska