K GOPALAKRISHNAN NAIR Vs. JUDICIAL I CLASS

JUDGEMENT

(1.) The petitioner herein, who is the 1st respondent before the lower appellate court the complainant in the trial court, approached this court under Article 227 of the Constitution of India challenging Ext.P3 judgment of the court below and with a prayer to declare that Crl.A.No.522 of 2000 shall finally abate due to the death of the appellant/accused therein. He has also sought for a direction to the 1st respondent to release the amount deposited on the basis of Ext.P2 order. The further prayer in the writ petition is to declare that the petitioner is entitled to realize the compensation and cost of the proceedings as directed in Ext.P1 from the assets of the accused therein through Civil Court except the amount covered in Ext.P2 if so disbursed to the petitioner.

(2.) In order to appreciate the contentions advanced by the petitioner and the reliefs for in the writ petition, a brief facts of the case is absolutely inevitable. The petitioner herein is the complainant in C.C.No.55/98 on the file of the Judicial First Class Magistrate IV (Mobile), Thiruvananthapuram for the offence punishable under section 138 of the Negotiable Instruments Act. One M.Masilamani, R.M.S sorting Section, R.M.S.Thampanoor, Thiruvananthapuram, was the accused in the above case. The allegation in the above complaint is that towards the discharge of the debt of Rs.35,000/- which the accused owned to the complainant, a cheque dated 2-1-98 bearing No.1079613 drawn on the Kaithamukku Branch of the Kerala State Co-operative Bank, Thiruvananthapuram was issued. The cheque when presented for encashment dishonoured and returned for 'insufficiency of funds" in the account of the accused. After complying the statutory formalities, a complaint was filed within time as there was no payment. The complaint was originally filed before the Chief Judicial Magistrate's Court, Thiruvananthapuram wherein it was taken on file as C.C.No.76/98 and subsequently made over to the trial court. Pursuant to notice issued by the court, the accused appeared before the court and the particulars of the offence were read over to him to which he pleaded not guilty which necessitated further trial of the case during which PW-1 got himself examined and Ext.P1 to P7 documents were marked on the side of the complainant. Though there was no documentary evidence form the side of the defence, one defence witness was examined as DW-1.

(3.) After an elaborate discussion of the materials and evidence on record, the trial court held that the accuse has committed the offence punishable under section 138 of the N.I. Act and accordingly the court found him guilty and convicted him thereunder. Under issue No.6, an issue the trial court formulated during trial, the accused was sentenced to undergo simple imprisonment for 3 months. Besides the above substantial sentence, the accused was directed to pay to the complainant a sum of Rs.35,000/-, which is equal to the cheque amount, as compensation under section 357(3) of Cr.P.C. The accused was also directed to pay to the complainant a sum of Rs.1000/- as cost of the proceedings under section 359 of Cr.P.C. and in default of the same, the accused was directed to undergo simple imprisonment for 30 days. A copy of the above judgment is produced along with this writ petition as Ext.P1.