The High Court allowed the criminal appeal against the acquittal of the accused in a cheque dishonour case. The Court set aside the acquittal order, convicted the appellant, and sentenced her to one day's imprisonment and a fine.
Appeal allowed; acquittal set aside; 1st respondent convicted; sentenced to one day's imprisonment and fined Rs. 32,680/.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935
CRL.A.No. 487 of 2005 (F)
AGAINST THE ORDER/JUDGMENT IN ST 884/2004 of J.M.F.C.IV (MOBILE),TVM. DATED 10-11-2004
APPELLANT/COMPLAINANT::
M/S. NIRMALA AUTOMOBILES PVT.LTD., REPRESENTED BY ITS MANAGER (ACCOUNTS), CORNER HOUSE, OPPOSITE A.R. CAMP, NANTHAVANAM, THIRUVANANTHAPURAM.
BY ADVS.SRI.K.R.B.KAIMAL (SR.)
SRI.B.UNNIKRISHNA KAIMAL
SRI.ANIL K.NAIR
RESPONDENTS/ACCUSED::
R1 BY ADV. SRI.NAGARAJ NARAYANAN R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.A.S.SABU R1 BY ADV. SRI.A.G.GIRISH KUMAR R2 BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No.487 of 2005
Dated this the 11th day of November, 2013
JUDGMENT
Aggrieved by the judgment dated 10/11/2004, the complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act preferred the above appeal since the learned Magistrate by the impugned judgment acquitted the accused.
Crl.A.No.487 of 2005
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statutory notice was sent on 29/10/2001 informing the accused about the dishonour of cheque and requesting her to pay the dishonoured cheque amount within 15 days of the receipt of the notice, no payment was made in spite of the fact that the accused received the said notice and therefore according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act.
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and materials on record, following the decision reported in [2000(1) KLT Page 125] the learned Magistrate found that the complaint was filed only on 12/12/2001 which is long after the prescribed period of 30 days from the receipt of Ext.D1 notice and thus the complaint was filed beyond the statutory period and as such court could not take cognizance in view of Section 142(b) of the Act. Consequently found that the complaint is not maintainable and accordingly the same is dismissed and the accused is acquitted under Section 255(1) of Cr.P.C. It is against the above finding and order of acquittal the complainant therein preferred this appeal, on getting leave granted by another learned Judge of this Court on 02/03/2005 in Crl.L.P.No.169 of 2005.
appearing for the appellant and Adv.Sri.Nagarajnarayanan, the learned counsel appearing for R1.
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Court reported in MSR Leathers Vs. Palaniyappan [2012 (4) KLT 136 SC] both the counsel for the appellant as well as the learned counsel for the respondent/accused submitted that they are proposed to file a compounding petition following the guidelines issued by the Hon'ble Apex Court in the decision in Damodar S.Prabhu Vs. Sayed Balalal.H. [2010 (5) SCC 663]. Accordingly, recording the above submissions particularly in the light of the request made by the learned counsel for the first respondent this Court passed following order:-
“Post after one month at the request of counsel for the first respondent/accused since they propose to compound the offence by paying an amount of 31,000/- (Rupees Thirty one thousand) to the appellant/ complainant and depositing 950/- (Rupees Nine Hundred and Fifty only) in the KELSA in view of the decision reported in Damodar S.Prabhu vs. Sayed Balalal.H. [2010(5)SCC 663].”
consideration the learned counsel for the first respondent submitted that respondent is not in a position to raise such
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amount and requested that time may be allowed to pay the amount, which the respondent agreed on 30/9/2013.
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and reversed, especially when no other argument advanced on behalf of the respondent in support of the order of acquittal.
In the result, this appeal is allowed setting aside the order of acquittal and accordingly the 1st respondent/accused is convicted for the offence under Section 138 of the N.I. Act and on such conviction the 1st respondent/accused is sentenced to undergo imprisonment for one day, i.e., till the raising of the court, on his appearance, and the first respondent/accused is also sentenced to pay a fine of 32,680/- within two months from today, failing which the first respondent/accused is directed to undergo simple imprisonment for six months. Accordingly, the first respondent/accused is directed to appear before the trial court on **10/01/2014** to receive the sentence of imprisonment and also to pay the fine amount as ordered by this Court. It is made clear that the fine amount shall be deposited directly before the trial court on the date fixed for the same. On depositing such fine amount, the learned Magistrate is directed to pay an amount of 30,000/- to the appellant/complainant as compensation under Section 354 (1)
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of Cr.P.C and the remaining amount shall be remitted in the State Exchequer.
If there is any failure on the part of the first respondent/ accused in appearing before the court as directed above and to receive the sentence and pay the fine amount, the trial court is free to take coercive steps against her and to execute the sentence.
V.K.MOHANAN, JUDGE
skj
2 issues framed by the court
Whether the High Court can set aside the order of acquittal in a cheque dishonour case filed beyond the statutory period based on the Apex Court's decision in MSR Leathers.
Whether the remedy of compounding under Damodar S. Prabhhu guideline is available when a significant delay has elapsed between the case and the hearing.
Colour shows how this judgement treated each authority
[2000(1) KLT Page 125]Referred¶29
MSR Leathers Vs. PalaniyappanFollowed¶33
MSR Leathers Vs. Palaniyappan [2012 (4) KLT 136 SC]
Damodar S.Prabhu Vs. Sayed Balalal.H.Referred¶33
Damodar S.Prabhu Vs. Sayed Balalal.H. [2010 (5) SCC 663] · Who else cites this
3 provisions across 2 enactments
M/S. NIRMALA AUTOMOBILES PVT.LTD.
PUSHPALATHA
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
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