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
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