Kerala High Court
T.R.Shaji vs T.R.Shaji on 22 February, 2019
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940
CRL.A.No. 335 of 2010
AGAINST THE JUDGMENT IN CRA 199/2009 of SPECIAL COURT (NDPS ACT
CASES), THODUPUZHA
APPELLANT/RESPONDENT/COMPLAINANT:
T.R.SHAJI, S/O.RAGHAVAN,
KANDAMANGALATHU VEEDU, AREEKUZHA.P.O,
MANACAUD VILLAGE, THODUPUZHA TALUK.
BY ADV. SRI.S.RAJEEV
RESPONDENTS/COMPLAINANT & STATE
:
1 K.A.VIJAYAN,
KULATHOOPUTHEN PURA VEEDU,
MADAKKATHANAM .P.O,
MANIYANTHRAM BHAGOM,
MOOVATTUPUZHA TALUK.
2 STATE OF KERALA REP. BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADVS.
SRI.K.RAMACHANDRAN
SRI.S.SREEDEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No. 335 of 2010
2
JUDGMENT
The appellant herein is the complainant in ST 471/2008 of the Chief Judicial Magistrate's Court, Thodupuzha. He brought the said complaint against the 1st respondent herein under Section 138 of the Negotiable Instruments Act, on the allegation that a cheque for ₹20,000/- issued by the accused in discharge of a legally enforceable debt due to the complainant was bounced due to insufficiency of funds, and in spite of statutory notice, the accused failed to make payment of the amount. After necessary enquiry, the learned Magistrate took cognizance on the complaint and issued summons to the accused. He entered appearance in the trial court and pleaded not guilty when the substance of the accusation was read over and explained to him. The complainant examined himself and proved Exts.P1 to P6 documents in the trial court. The accused did not adduce any evidence in defence. He denied the incriminating circumstances. CRL.A.No. 335 of 2010 3
2. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo imprisonment till rising of the court and to pay a fine of ₹20,000/- by judgment dated 30.09.2009.
3. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Thodupuzha with Crl.A No.199/2009. In appeal, the learned Second Additional Sessions Judge found in favour of the complainant that he has proved a legally enforceable debt, but acquitted the accused on the finding that the statutory notice sent by the complainant is not proper. Aggrieved by the said judgment of acquittal in appeal, the complainant has come up in appeal before this court with the leave of this court.
4. The 1st respondent once entered appearance through the learned counsel, but he remained absent when the appeal came up for final hearing. I heard the learned counsel for the appellant and perused the case records. On a perusal of the materials CRL.A.No. 335 of 2010 4 including the statutory notice sent by the complainant, I find that the accused was wrongly acquitted in appeal by the appellate court. The complainant has given evidence proving the transaction and also a legally enforceable debt of ₹20,000/-. That is the finding of the appellate court also. Having found in favour of the complainant that he has proved a legally enforceable debt, the appellate court found on the question of statutory notice, that the notice sent by the complainant does not disclose or mention about a legally enforceable debt or liability. The complainant has used the word 'obligation' and the notice shows that the accused was required by notice to discharge the obligation. The word used is not "debt" or "liability", but "obligation". This word itself denotes a liability, or gives an indication to the accused that what he is required by notice to pay is the amount due to the complainant. A clear debt or liability for the discharge of which demand is made by the CRL.A.No. 335 of 2010 5 complainant is well clear from the statutory notice sent by the complainant. Just because he did not specifically use the word debt or liability, it cannot be said that the notice is not proper or legal. The short issue is whether the notice mentions a debt, or whether the accused is called upon to discharge a debt due from him. If that is there in the notice and if the amount is also specified, that notice will satisfy the requirements under Section 138 of the N.I Act. On all other aspects, the finding of the appellate court is in favour of the complainant. I find that the accused was wrongly acquitted by the appellate court.
In the result, this appeal is allowed. The judgment of acquittal of the appellate court dated 16.12.2009 in Crl.A No.199/2009 is set aside, and the judgment of conviction of the trial court is restored. The 1st respondent will surrender before the trial court, within four weeks from this date to serve out the sentence and to make payment of CRL.A.No. 335 of 2010 6 the fine amount voluntarily, on failure of which steps shall be taken by the trial court to enforce the sentence and realise the amount of fine, or enforce the default sentence.
Sd/-
P.UBAID
ma /True copy/ JUDGE
P.S to Judge