IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939 CRL.A.No. 1339 of 2016 CRL.A.NO.450/2003 OF ADDL.SESSIONS COURT,KOTTAYAM CC.NO.287/1991 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM ----------

APPELLANT/2ND RESPONDENT/COMPLAINANT:

K.CHERIAN KURIAN, KIZHAKKEL HOUSE, RUBBER BOARD P.O., KOTTAYAM.

BY ADV.SRI.M.J.THOMAS RESPONDENT(S)/APPELLANT/ACCUSED AND STATE:

1. P.K.RADHAKRISHNAN, THULASI VILLA, PARIPPU.P.O., AYMANAM, KOTTAYAM-686 024.

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

R1 BY ADV. SRI.V.N.SASIDHARAN R2 BY SR PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

sts

6/4/2018 (C.R)

ALEXANDER THOMAS, J.

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Crl.Appeal No. 1339 of 2016 ==================

Dated this the 15^th day of March, 2018

J U D G M E N T

The appellant is the complainant in C.C.No.287/1991 on the file of the Court of Chief Judicial Magistrate, Kottayam, wherein the 1^st respondent herein has been indicted for offence punishable under Sec.138 of the Negotiable Instruments Act. Ext.P-1 dishonoured cheque dated 30.10.1990 is for Rs.50,000/-. The trial court as per the judgment rendered on 25.8.2003 has convicted the 1^st respondent-accused for the above said offence and has sentenced him to undergo simple imprisonment for 3 months and to pay fine of Rs.50,500/- and in default thereof, to undergo simple imprisonment for one month. On realisation of the above said fine amount of Rs.50,500/-, it is ordered that an amount of Rs.50,000/- shall be paid to the complainant as compensation in terms of Sec.357(1)(b) of the Cr.P.C. Aggrieved by the said conviction and sentence, the accused had preferred Crl.A.No.450/2003 before the appellate Sessions Court, Kottayam. The appellate court concerned (Court of Additional Sessions Judge, Kottayam), as per the impugned judgment rendered on 18.6.2004 has allowed the said Criminal Appeal filed by the accused and has set aside the conviction and sentence imposed on him as per the impugned judgment and has set him at liberty. Being aggrieved by the said impugned judgment of acquittal rendered by the appellate Sessions Court, the complainant had preferred Criminal Leave Petition No.631/2004 before this Court seeking special leave of this Court under Sec.378(4) of the Cr.P.C so as to impugn the said judgment. This Court as per order dated 18.10.2004 had allowed the said plea and had granted special leave to the complainant. It is on this basis that the instant Criminal Appeal has been filed.

2. Heard Sri.M.J.Thomas, learned counsel appearing for the appellant/complainant, Sri.V.N.Sasidharan, learned counsel appearing for R-1 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

3. The gist of the allegations in the complaint is to the effect that the complainant and the accused were colleagues in the service of the Kerala State Road Transport Corporation (KSRTC) and that they were known to each other and that the accused had requested the complainant to advance a personal loan of Rs.50,000/- and the said amount was advanced by the complainant to the accused in July, 1990 with the assurance that the said loan amount would be repaid on demand. In discharge of the said liability, the accused has issued the instant Ext.P-1 cheque dated 30.10.1990 for Rs.50,000/- drawn from his account and payable in favour of the complainant and the cheque when presented resulted in dishonour as per dishonour memo dated 2.11.1990, pursuant to which, the complainant issued statutory demand notice dated 3.11.1990 calling upon the accused to pay the amount covered by the cheque within 15 days of the receipt of the said notice. The said notice sent by registered post was evaded by the accused and that the postal authorities had later returned the said registered notice on the g