IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 CRL.A.No. 120 of 2000 ST.33/1997 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... APPELLANT: C.G.DASAN,PROPRIETOR, SINDHU COIR TRADERS THUMBOLI ALAPPUZHA BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS: 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. 2. JACOB ANTONY, PALLURUTHIL PALLURUTHIL COIR MILLS KANJIRAMATTOM-P.O. ALAPPUZHA BY PUBLIC PROSECUTOR SRI.JAI GEORGE SRI.JACOB ANTONY R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.120 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May 2008 JUDGMENT This appeal is directed against an order of acquittal in a prosecution under Section 138 of the Negotiable Instruments Act. The appellant who was the complainant before the trial court contended that Ext.P1 cheque issued by the respondent/accused in discharge of a legally enforceable debt was dishonoured, when it was presented for encashment. Though a statutory demand notice was issued by the complainant, it did not evoke any response. The learned Magistrate, after considering the oral and documentary evidence on record, held that Ext.P1 cheque was subjected to material alteration and therefore, the offence under Section 138 of the Act had not been proved or established. Accordingly, the respondent/accused was acquitted. 2. The case of the complainant was that the accused had issued Ext.P1 cheque for Rs.15,000/- in discharge of a liability which had arisen on account of purchase of coir fibre from him. Crl.A.No.120 OF 2000 :: 2 :: The complainant who was examined as PW1 had asserted before the court that the accused had issued the cheque in question in connection with the above transaction. But the defence set up by the accused was that he had had no business transaction as alleged by the complainant. However, he had borrowed a sum of Rs.5,000/- from the complainant. It was admitted by the accused that he had issued Ext.P1 cheque after entering the amount of Rs.5,000/- in figures. But when he was about to enter the amount in words, the complainant had persuaded him not to do so. The accused further contended that the complainant had presented the said cheque after making alteration in the amount and also writing up the sum of Rs.15,000/- in words. The learned Magistrate accepted the above contention. 3. Having heard learned counsel for the appellant and having perused the materials available on record, I am unable to uphold the finding entered by the learned Magistrate. In my view, the learned Magistrate ought to have noticed that the accused had not discharged the burden cast upon him under Section 139 of the Act. Similarly, the presumption available in Crl.A.No.120 OF 2000 :: 3 :: favour of the drawee of the cheque under Section 118 of the Act also ought to have been kept in view. Interestingly the learned Magistrate did not choose to believe DW2 who stated before the court that he had witnessed the money transaction between the complainant and the accused involving Rs.5,000/-. 4. The complainant had produced Exts.C1 to C3 documents in relation to the business transaction that he had as a dealer in coir products. The learned Magistrate did not place any reliance on the bill book on a totally flimsy reasoning. The learned Magistrate also overlooked the fact that the accused had not bothered to send a reply to the statutory demand notice. The reasoning of the learned Magistrate that the complainant had not given the particulars of the business transaction in the complaint cannot be a ground to discard the case of the complainant. 5. Having regard to the totality of the facts and circumstances, I am satisfied that the complainant had proved his case. Therefore, the order of acquittal passed by the court below is set aside. Respondent/accused is found guilty under Section 138 of the Act. Though the respondent has been served Crl.A.No.120 OF 2000 :: 4 :: with notice through publication, he has not appeared either in person or through counsel. Since the amount involved is only Rs.15,000/-, I am of the view that some leniency in the matter of sentence can be shown to the accused. Therefore, the respondent/accused is convicted and sentenced to undergo imprisonment till the rising of the court and also to pay a compensation of Rs.20,000/- to the complainant under Section 357(3) of the Code of Criminal Procedure. Respondent/accused shall appear before the court on or before July 15, 2008. On his appearance, the learned Magistrate shall ensure that petitioner undergoes imprisonment till the rising of the court. If the respondent does not appear and remit the amount of compensation, he shall suffer simple imprisonment for three months. (A.K.BASHEER, JUDGE) jes Crl.A.No.120 OF 2000 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - Crl.A.No.120 OF 2000 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 21st May 2008