IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 337 of 2003() ------------------------------------ CRA.207/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.692/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT(S): RESPONDENT/COMPLAINANT: ------------------------ * P.J. JOSEPH, AGED 75 YEARS, S/O. JOSEPH, PATHIYIL HOUSE, KORUTHODE KARA, ERUMELY. (DIED) * JITTO JOSEPH, S/O. LATE P.J.JOSEPH, PATHIYIL HOUSE, KORUTHODE, ERUMELY, KOTTAYAM DISTRICT. FOR LATE P.J. JOSEPH, S/O. JOSEPH, PATHIYIL HOUSE, KONITHODE, ERUMELY. IS SUBSTITUTED IN THE PLACE OF THE DECEASED APPELLATN AS PER ORDER DT. 10.7.06 IN CRL.MA NO.6527/06. BY ADV. MR.NOBLE MATHEW RESPONDENT(S): APPELLANTS/ACCUSED: -------------------------- 1. JOHNY, AGED 36 YEARS, S/O. PAPPACHAN, MOOLACHALIL HOUSE, KORUTHODE P.O., ERUMELY. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.GEORGE KURUVILLA(ALAPPUZHA) FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 337 OF 2003 = = = = = = = = = = = = = = = Dated this the 26th day of June, 2009. J U D G M E N T This appeal is preferred against the judgment rendered by the Addl. Sessions Judge, Kottayam in Crl.A.207/99. It was an appeal preferred against the conviction and sentence passed by the Judicial First Class Magistrate-I, Kanjirapally in C.C.692/97. It is the case of the complainant that the accused had borrowed a sum of Rs.40,000/- and towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment had returned for insufficiency of funds. The Court below on appreciation of the materials found that the case of the complainant is more probable and convicted the accused. In appeal the learned Sessions Judge acquitted the accused on the ground that the preponderance of probabilities while analyzing the evidence is more on the side of the accused rather than on the side of the complainant and Crl.A. 337 OF 2003 -2- therefore reversed the conviction. It is against that decision the complainant has come up in appeal. 2. In order to understand the implications of the case it is desirable to understand the case of the parties. The case of the complainant is as stated above right from the inception of the private complaint the defence appears to be that the complainant and one Jose had entered into an agreement with respect to slaughter tapping of rubber for a sum of Rs.3,40,000/- out of which Rs.1,00,000/- was paid. Subsequently this Jose and the complainant together entered into an agreement with Thankachan. The amount outstanding was Rs.2,40,000/- out of which Rs.70,000/- was paid and the balance remaining was Rs.1,70,000/-. Of this Rs.85,000/- was paid in time and towards the balance of Rs.85,000/-, Rs.50,000/- was paid in cash and the balance was Rs.35,000/- with Rs.5,000/- interest amounting to Rs.40,000/-. It is the case of the accused that the said Thankachan had approached him for a sum of Rs.40,000/- and as he was not having cash with him he had given a cheque to him only by putting his signature and writing the amount without filling the name of Crl.A. 337 OF 2003 -3- the person to whom it is issued. According to the accused this cheque has been handed over to the complainant by the said Thankachan and thus action is initiated whereby contending that he has no business or transaction with the complainant. The Courts below dealt with the evidence of PW1. and DWs.1 and 2. PW1 is the complainant. PW1 had deposed that he had advanced a sum of Rs.40,000/- and towards the discharge of the liability on the date of borrowal itself a post dated cheque was handed over which when presented for encashment returned with insufficiency of funds. A lawyer notice was issued which was not replied as well. Now in the chief examination the witness would depose that a cheque was signed and given to him. In the cross-examination a suggestion was put to the effect that only the signature and the amount was written in the cheque and whether the balance is written by somebody else. the answer is “I don't Know”. I do not know rightly or wrongly the Court below had send the cheque for comparison of handwriting and it has been found that the name shown in the cheque and the figure and the signature are in two different hand writings. The whole Crl.A. 337 OF 2003 -4- case depends upon the materials placed above and as held by this Court when both sides adduce evidence and materials is available before Court the preponderance of probabilities can be looked into by scrutiny of the evidence of both the sides. There is no bar in law that the cheque must be written in the hand writing of only one person. If the complainant has got a specific case that the entire hand writing in the cheque was that of the accused and if it comes out in evidence it is not so then it has to be stated that the evidence of the complainant is not acceptable to prove the execution of the cheque. But in this case there is no such case or evidence tendered by the complainant. So now what is to be looked into is the defence set up by the accused. It is all relating to the slaughter tapping of rubber. As per the terms of the agreement ultimately one Rs.1,70,000/- became due. Rs.85,000/- was given and out of the balance of Rs.85,000/-, Rs.50,000/- was given and for the remaining Rs.35,000/- with interest it is contended that a cheque was given by the accused to one Thankachan from whom that amount was due to the complainant. It has to be understood it is not a case of the Crl.A. 337 OF 2003 -5- accused that Thankachan had represented this fact and had obtained the cheque and had given it as a security to the complainant. The case of the accused in the 313 statement is that Thankachan wanted some money and as he did not have money he gave the cheque by writing the amount and putting his signature. 3. At the out set it has to be stated that if a person is in need of money and approaches a person, these types of cheque will not in any way help that person and therefore story attempted to be developed cannot be believed at all. I think when PW1 was cross examined the suggestions are as if the accused also know about the transaction and Thankachan had given a cheque from the accused and handed over it to the complainant. But there is no such case when it comes to the 313 Statement. So the stories spoken to by the accused appears to be absolutely artificial and I am not inclined to place any reliance on the same and the version of the learned Sessions Judge that preponderance of probabilities is more in favour of the accused cannot be acceptable in this case. So what remains is the analysis of the evidence of PW1. He has Crl.A. 337 OF 2003 -6- spoken about the transaction. He issued notice and the accused received and it keeps quiet. Admittedly the signature is that of the accused and even he admits the hand writing of the amount. So the evidence of PW1 that the accused had brought the cheque and had given it to him towards the discharge of the liability appears to be probable, acceptable and correct. Therefore disagreeing with the Sessions Judge I hold that materials are sufficient to hold that the accused had committed the offence under Section 138 of the N.I. Act. 4. I confirm the judgment of the trial court with respect to the conviction. As far as the punishment is concerned, if the accused is serious of paying the amount I do not want to stand in the way and as per the amended Negotiable Instruments Act a Court of competent jurisdiction is entitled to levy double the amount as fine but suffice to say let the cheque amount be paid and that shall be the fine. In the result the appeal is allowed and the judgment of the Sessions Judge is set aside and the accused is found guilty u/s 138 of the N.I. Act and is sentenced to pay a fine of RS.40,000/- and in default to undergo simple imprisonment Crl.A. 337 OF 2003 -7- for a period of six weeks. On realisation of the amount let it be disbursed to the complainant on proper application. If the accused does not pay the amount on or before 15.9.09 the trial court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 337 OF 2003 -8- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 337 OF 2003 = = = = = = = = = = = J U D G M E N T 26th June, 2009