IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 27^TH DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 CRL.A NO. 1851 OF 2011 AGAINST THE ORDER/JUDGMENT CRA 326/2009 OF I ADDITIONAL SESSION COURT KOLLAM, ST NO.50/2009 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-IV, KOLLAM Crl.L.P. 825/2011 OF HIGH COURT OF KERALA APPELLANT/S:

M.K.SHAJAHAN, SHAN MANZIL THATTARKONAM PO, KOLLAM.

BY ADV SRI.O.V.MANIPRASAD RESPONDENT/S:

1 SHAFEEK, S/O.THAJUDEEN SHAMNA MANZIL, T.K.M C PO, KOLLAM PIN 691 005.

2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

BY ADVS.

SRI.S.SUNIL NARAYANAN - R1 SRI.SAJJU.S SMT.SEETHA.S, PUBLIC PROSECUTOR - R2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C. S. DIAS, J.

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Crl.A. No.1851 of 2011 -------------------------

Dated this the 27^th day of November, 2023

JUDGMENT

The appeal is filed questioning the legality and correctness of the judgment in Crl.A No.326/2009 of the Court of the First Additional Sessions Judge, Kollam (Appellate Court) holding the first respondent/accused not guilty and acquitting him for the offence under Section 138 of the Negotiable Instruments Act (in short, ‘N.I.Act’) and reversing the judgment in S.T No.50/2009 of the Court of the Judicial First Class Magistrate -IV, Kollam (Trial Court). The appellant was the complainant and the first respondent was the accused before the Trial Court. For the sake of convenience, the parties are, referred to as per the status before the Trial Court.

Brief facts

2. The case of the complainant was that the accused had borrowed an amount of Rs.2,50,000/- from the complainant and issued Ext P1 cheque in discharge of a legally enforceable debt. The cheque, on presentation to the bank for collection, got dishonoured by Ext P2 memorandum, due to ‘insufficient funds’ in the bank account of the accused. Although the complainant issued Ext.P3 statutory lawyer notice to the accused, he failed to pay the demanded amount. Hence, the accused committed the above offence.

3. The learned Magistrate took cognizance of the offence. The accused pleaded not guilty to the substance of accusation read over to him. In the trial, the complainant was examined as PW1 and Exts. P1 to P5 were marked on his side. The accused denied the incriminating circumstances appearing against him in the evidence in the questioning under Section 313 of the Code of Criminal Procedure(in short, ‘Code’). The accused produced and marked Ext D1 reply notice on his side.

Trial Court judgment

4. The learned Magistrate, after analysing the materials on record, found the accused guilty and convicted him for the offence under Sec.138 of the N.I Act and sentenced to undergo simple imprisonment for a period of two months and pay a fine of Rs.2,50,000/- and in default to undergo simple imprisonment for a further period of two months. If the fine amount was realised, the same to be paid to the complainant as compensation under Sec.357(1) (b) of the Code.

5. Aggrieved by the said judgment, the accused filed Crl.A No.326/2009 before the Appellate Court.

Appellate Court judgment

6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, found the accused not guilty and consequently acquitted him and thereby set aside the judgment of the Trial Court.

7. It is challenging the judgment of the Appellate Court; the present appeal is filed.

8. Heard; Sri. O.V Maniprasad, the learned counsel appearing for the appellant, Sri.S.Sunil Narayanan, the learned counsel appearing for the first respondent/accused and Smt.S.Seetha, the learned Senior Public Prosecutor appearing for the second respondent/State.

9. The point is whether there is any illegality or error in the judgment passed by the Appellate Court. 10. It is very well settled by a host of precedents that this Court should be slow and circumspect in interfering with an or