Nirmala Automobiles Pvt. Ltd. v. Pushpalatha

## 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:: ----------------------- 1. PUSHPALATHA, SASTHA KRIPA, KALLAYAM P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 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 11[th] 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. 2. The case of the complainant is that the complainant is an authorized dealer of Swaraj Mazda vehicles which undertake the repairs of those vehicles and the accused is the owner of Swaraj Mazda Truck having registration No. KL-01/S-273 and the said vehicle was repaired in the workshop conducted by the complainant and towards the payment of repair charges, the accused had issued a cheque dated 30/5/2001 for an amount of `19,000/- and when the said cheque presented for encashment, the same was returned dishonoured for the reason “funds insufficient” and though a Crl.A.No.487 of 2005 :-2-: 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. 3. With the above allegation the complainant approached the court of the Chief Judicial Magistrate, Thiruvananthapuram by filing a complaint whereupon cognizance was taken for the offence punishable under Section 138 of the N.I. Act and after appearance of the accused and on recording her pleading, the case was made over to the trial court, namely, the court of Judicial First Class Magistrate-IV (Mobile), Thiruvananthapuram. Thus during the final trial of the case PWs.1 and 2 were examined from the side of the complainant and Exts.P1 to P11 documents were marked. From the side of the defence DW.1 was examined and Exts.D1 and D2 were marked. After considering the entire evidence Crl.A.No.487 of 2005 :-3-: 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. 4. Heard Sri.K.R.B.Kaimal, the learned counsel appearing for the appellant and Adv.Sri.Nagarajnarayanan, the learned counsel appearing for R1. 5. When the above appeal came up for consideration on 30/9/2013 after hearing the matter to a certain extent particularly in view of the latest decision of the Hon'ble Apex Crl.A.No.487 of 2005 :-4-: 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].” 6. When the above matter is taken today for consideration the learned counsel for the first respondent submitted that respondent is not in a position to raise such Crl.A.No.487 of 2005 :-5-: amount and requested that time may be allowed to pay the amount, which the respondent agreed on 30/9/2013. 7. I am unable to allow the above request of the learned counsel. The cheque in question is dated 30/5/2001 for an amount of `19,000/- and after issuing the said cheque 12 years are over. Therefore, at this belated stage, it is not proper in granting further time and thereby delay the payment. In the above circumstances the order dated 30/9/2013 issued by this Court is re-called. 8. In view of the settled position of law particularly in view of the decision reported in **MSR Leathers Vs. Palaniappan** [2012 (4) KLT 136 (SC)] wherein the Hon'ble Apex Court has held that, the complaint filed on the basis of second notice is maintainable and non-filing of complaint after first dishonour and first statutory notice does not tantamount to absolution of the offender or forfeiture of the right to claim, according to me, the reason assigned by the learned Magistrate to reject the case of the complainant is not sustainable and the order of acquittal is liable to be set aside Crl.A.No.487 of 2005 :-6-: 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 1[st] respondent/accused is convicted for the offence under Section 138 of the N.I. Act and on such conviction the 1[st] 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) Crl.A.No.487 of 2005 :-7-: 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