R VIJAYAN Vs. BABY

JUDGEMENT

(1.) Leave granted. Heard.

(2.) The complainant in a complaint under Section 138 of the Negotiable Instruments Act, 1881 (Act for short) is the Appellant in this appeal by special leave. A cheque dated 31.3.1995 for Rs. 20,000/- issued by the first Respondent drawn in favour of the complainant, towards alleged repayment of a loan was dishonored when presented for payment. The Appellant sent a notice dated 20.4.1995 demanding payment. According to the complainant, the notice was served on the first Respondent but the payment was not made. Therefore on 25.5.1995 the Appellant lodged a complaint against the first respondent, under Section 138 of the Act before the First Class Magistrate -IV, (Mobile), Thiruvananthapuram. After trial, the learned Magistrate by judgment dated 30.11.1996 found the accused guilty under Section 138 of the Act and sentenced her to pay a fine of Rs. 2000/- and in default to undergo imprisonment for one month. He also directed the accused to pay Rs. 20,000/- as compensation to the complainant and in default to undergo simple imprisonment for three months.

(3.) The first Respondent challenged the said judgment and the criminal appeal filed by her was allowed by the First Additional Sessions Judge, Thiruvananthapuram by judgment dated 26.11.2001. The conviction and sentence imposed on the first Respondent was set aside and the Appellant was acquitted. The first appellate court held that the accused having denied her signature in the postal acknowledgement relating to the notice dated 20.4.1995, the Appellant ought to have examined the postman who served the notice; and as the Appellant did not do so, the court held that the complainant had not discharged the burden to prove that the notice was duly served on the first Respondent. The Appellant filed criminal appeal before the High Court. The High Court allowed the appeal in part. It held that the service of notice was duly proved. As a consequence it restored the conviction entered by the learned Magistrate in reversal of the judgment of the first appellate court. However the High Court held that it could only restore the fine of Rs. 2000/- imposed by the Magistrate with the default sentence but not the direction for payment of compensation under Section 357(3) of the Code, as it could not co-exist with the imposition of fine. Therefore, the direction for payment of compensation was not restored. The said judgment is challenged in this appeal by special leave.