Allowed

P.v.Akhilesh v. C.v.Ajayakumar

Kerala HC3 Dec 2013CRL.A/635/2002

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Kerala allowed the appeal against an order of acquittal under Section 138 of the NI Act. The Court held that relying on MSR Leathers Vs. Palaniappan, a complaint filed after a second dishonour and notice was maintainable. Consequently, the order of acquittal was reversed, the respondent was convicted, and sentenced to one day's imprisonment along with pay

What did the court decide?

Order of acquittal reversed; respondent convicted under Section 138 NI Act; sentenced to one day simple imprisonment; directed to pay compensation of Rs. 1,48,000/- under Section 357(3) Cr.P.C.

P.v.Akhilesh Vs C.v.Ajayakumar — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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TUESDAY, THE 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935

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CRL.A.No. 635 of 2002 ( )

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AGAINST THE JUDGMENT IN CC 1157/1998 of J.M.F.C., MATTANNUR DATED 20-03-2002

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APPELLANT(S)/COMPLAINANT::

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P.V.AKHILESH, S/O. BALAKRISHNAN, HOTEL VRINDHA, MATTANNUR.

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BY ADV. SHEJI P.ABRAHAM

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RESPONDENT(S)/ACCUSED::

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C.V.AJAYAKUMAR, S/O. LATE GOPALAN, CHINGANTAVIDE HOUSE, P.O.PONNIAM EAST, THALASSERY, KANNUR.

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BY ADVS.SRI.T.T.MOHAMMOOD SRI.P.NARAYANAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.635 of 2002

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Dated this the 3^rd day of December, 2013.

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J U D G M E N T

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The complainant in a prosecution for the offence punishable under section 138 of the N.I. Act is the appellant herein as he is aggrieved by the judgment dated 20.3.2002 in C.C.No.1157/98 of the court of Judicial First Class Magistrate-Mattannoor, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

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The case of the complainant is that, in the month of February 1998, the accused borrowed `63,000/- from him as loan and for its repayment, issued a cheque dated 25.5.98 drawn on his account in the Panniyam Service Cooperative Bank Limited. When the cheque was presented for encashment by the complainant, it was returned with a note “funds insufficient”. Therefore, the complainant made

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Crl.A.No.635 of 2002

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a demand for the cheque amount by issuing lawyer's notice to the accused. Though the accused received the notice, he did not pay the amount. Therefore, the accused has committed an offence punishable under Section 138 of the N.I. Act.

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With the above allegation, the complainant approached the trial court by filing a complaint, upon which cognizance was taken, in due compliance of the formalities for the offence under section 138 of the N.I. Act and during the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. The defence taken by the accused is that he had borrowed a sum of `15,000/- from the brother in law of PW2, namely one Nalinakshan and at the time of the borrowal of the said amount, he issued a blank signed cheque as security and it is the further case of the accused that though the entire amount which was due to the said Nalinakshan has paid, by demanding more

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Crl.A.No.635 of 2002

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amount, he did not return the cheque and according to the accused, it is the said blank cheque, now misused by the complainant and preferred the complaint.

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The trial court found that no evidence is adduced to substantiate the above defence of the accused and after having due consideration of the evidence and materials, has found that Ext.P1 cheque was issued by the accused to the complainant in discharge of a debt/liability and also found that the said cheque was dishonoured for the reason insufficiency of fund. Further, while considering the point nos.(iii) and (iv), namely the question whether the complainant has issued the statutory notice within time and whether the accused having received the notice failed to pay the amount within 15 days, the trial court has held that Ext.P4 demand notice, which was issued on 18.8.1998, was within time and the accused received the notice on 20.8.1998, but there is no evidence to show that the accused paid the amount within 15 days and thus found in favour of the complainant. But the 5^th question as to

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Crl.A.No.635 of 2002

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whether the complainant has cause of action to file this complaint, the learned Magistrate has found that, it is the bounden duty of the complainant to show that he had cause of action to file the complaint on the occasion of the first dishonour of the cheque and first issuance of notice. Consequently, it was held that the complaint filed in the above case is not maintainable as he has no cause of action to file the complaint, particularly when the complaint was filed on expiry of the time reckoned from the date of first notice and its receipt. On the basis of the above finding, the accused is found not guilty as the allegation is not proved beyond reasonable doubt and accordingly he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

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Heard the learned counsel for the appellant and the learned counsel for the respondent.

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The learned counsel for the appellant vehemently submitted that the findings of the court below are no longer sustainable in view of the decision of Full Bench decision of

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Crl.A.No.635 of 2002

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the Honourable Apex Court in MSR Leathers Vs. Palaniappan [2012(4) KLT 136(SC)] . The learned counsel for the respondent has also no contra submission or any contention that the above decision is not applicable in the present case.

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Admittedly, in the present case, the complainant issued two notices, purportedly in terms of proviso (b) of Section 138 of the NI Act. It is an admitted case of PW1 that before issuing Ext.P4 notice, he had presented the cheque once and then issued the statutory notice. The Bank Manager who was examined as DW1 also deposed before the court that the record reveals that the cheque was seen presented. It is on the basis of the above factual inputs, the learned Magistrate in the last portion of paragraph 14 of his judgment, has observed and found that, “...... In order to show that the address of the accused given in

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the first notice was not correct, the complainant did not produce

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the office copy of the notice, the postal receipt or the original

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Crl.A.No.635 of 2002

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notice returned. There is nothing to show that the address of the accused given in the first notice was wrong. The specific

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case of the accused is that he had the knowledge of the notice. Therefore the probability is that the first notice was issued in the correct address and it was either refused by the accused or not claimed by him. In either case it will give a cause of action to the complainant for filing a complaint.” It is on the basis of the above observation and finding, the learned Magistrate further held that the complainant cannot get rid of the limitation by re-presenting the cheque and cannot issue notice. Accordingly held that, in this case the complainant has not filed the complaint on the basis of the first notice. It is also found that the contention that the first notice was sent in a wrong address and thus it was not served on the accused is not proved beyond reasonable doubt. So, the entire tenure of discussion of the learned Magistrate is that, if once a notice is issued, the complaint ought to have

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been filed within the time reckoning the period of service of the first notice, in view of Clause C of Proviso to Section 138 of the NI Act. In view of the latest decision of the Honourable Supreme Court cited supra, it is now settled that the complaint filed on the basis of second notice is maintainable and non-filing of complaint after first dishonour and first statutory notice, do not tentamounts to surrendering of the offender or forfeiture of the right to claim.

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In the light of the above decision of the Honourable Apex Court, the finding of the court below particularly, on the basis of the fifth point considered by the learned Magistrate, is not sustainable and liable to be set aside. Therefore, in view of the other findings on the points considered by the court below, it is only to be held that the complainant has succeeded in proving his allegation against the accused and accordingly the order of acquittal recorded by the trial court is reversed and consequently the respondent/accused is convicted for the offence under

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Crl.A.No.635 of 2002

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section 138 of the NI Act. As this Court is inclined to confirm the finding and conviction recorded by the trial court, the learned counsel for the respondent/accused submitted that a lenient view may be taken in the matter of sentence. According to me, in view of the submission and in the light of the decision in Vijayan Vs. Baby [2011(4) KLT 355(SC)] , a lenient view can be taken, but safeguarding the interest of the complainant as well.

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In the result, this appeal is allowed, by reversing the order of acquittal recorded by the trial court as per the impugned judgment and the respondent/accused is convicted for the offence under section 138 of the NI Act and accordingly he is sentenced to undergo simple imprisonment for one day, ie., till rising of the court and he is directed to pay compensation of `1,48,000/- to the complainant under section 357(3) of Cr.P.C. within 2 months from today failing which he is directed to undergo simple imprisonment for 6 months. The accused is free to pay compensation amount either directly to the

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Crl.A.No.635 of 2002

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complainant or by depositing the same in the trial court, which ever subject to the satisfaction of the learned Magistrate of the trial court. Accordingly, the respondent/ accused is directed to appear before the trial court on 03.02.2014 to receive the sentence of imprisonment and to pay compensation amount in the trial court as fixed and directed above. If there is any failure on the part of the respondent/accused either in appearing before the court or in paying the compensation amount as directed above, the trial court is free to take coercive steps to secure the presence of the respondent/accused and to execute the sentence.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy// P.A. to Judge

P.v.Akhilesh v. C.v.Ajayakumar

Case brief

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P.v.Akhilesh v. C.v.Ajayakumar

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