IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 CRL.A.No. 1548 of 2003(C) ------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.357/2003 Dated 03/09/2003 CC.56/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... APPELLANT(S): COMPLAINANT ----------------------------------- BABU @ KRISHNAKUMAR, S/O.T.S.MENON, MADATHIL HOUSE, MATHUR, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.C.K.ABDUL RAHIM RESPONDENT(S): ACCUSED -------------------------------- M.VELAYUDHAN, S/O.AARU, THAMARACHIRA HOUSE, PALLANCHATHANOOR, ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1548 OF 2003 = = = = = = = = = = = = = = = Dated this the 29th day of July, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Palakkad in C.C.56/02. The Court below acquitted the accused in an offence u/s 138 of the Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.40,000/- on 27.9.99 and towards the discharge of the liability had issued a cheque which when presented for encashment was dishonoured with a memo stating exceeds arrangement. Though a notice was issued the accused did not pay back the amount and so the prosecution. 2. The evidence in this matter consisted of the oral testimonies of PWs.1 to 3 and Ext.P1 to P11(d). 3. The points that arise for determination in the appeal are, (1) Whether there are materials to hold the accused Crl.A. 1548 OF 2003 -2- guilty u/s 138 of the Negotiable Instruments Act? (2) Whether the Court below was justified in acquitting the accused? (3) Is there anything to interfere with the decision of the Court below? Points: 4. All these points are considered together for the sake of convenience. It is deposed by the complainant as PW1 that he had advanced a sum of Rs.40,000/- to the accused who was running a ration shop and when the amount was demanded back on 28.10.99 a cheque was issued towards the discharge of the liability. Ext.P1 is the cheque. He had also spoken about the non payment and issuance of notice etc. In the cross examination the suggestion is to the effect that the accused had borrowed a sum of Rs.6,000/- and he had discharged that amount. It is the specific suggestion that, Crl.A. 1548 OF 2003 -3- So the specific defence in the cross examination is to the effect that a cheque signed by the accused had been handed over to him and it is that cheque that had been utilized by the complainant to file a case. 5. But things take a totally different shape when PW2, the Manager of the Bank was examined. The whole defence is now attempted to be set up on the mistake of the account number shown in the cheque as 83. There cannot be any dispute in the light of the large number of materials available that account No.83 is that of one Appukuttan. When the Bank Manager was examined it is stated that it was only a mistake that account number is shown as 83. He has also deposed that the cheque relating to the account has been returned on the ground that there is no money in the account. Now, the accused is trying to make out a case which he is legally entitled under law to project that the cheque relates to a different account and therefore a prosecution will not lie in the light of the provisions u/s 138. S.138 of the Negotiable Crl.A. 1548 OF 2003 -4- Instruments Act specifically states that “where any cheque drawn by a person on an account maintained by him”. 6. Now the attempted defence is that since the account No.83 relates to a third person called Appukkuttan and the cheque is issued from that account it will not amount to an issuance of a cheque maintained by the accused. It has to be remembered that an account is maintained principally on the basis of the address given by the accused. In the cheque, account number is given for the purpose of easy reference. The Bank has understood it correctly that the cheque is issued by Velayudhan and that is why after going through the account of Velayudhan stated that there is no sufficient fund. The account's extract produced also would reveal the same. So the person who had issued the cheque and the person who had received the cheque and the Bank who had received it for encashment had known that the cheque is issued by the accused to his account. Then it is not proper to say that it is not on the account maintained by him, just because a Crl.A. 1548 OF 2003 -5- mistaken number is shown in the cheque leaf as 83. It is also to be born in mind that the specific defence at the time of cross examination of PW1 is that a cheque had been given by the accused as security for an amount of Rs.60,000/-. So basically the factum of issuance of a cheque by the accused is admitted by him in cross examination of PW1. In such a situation a mistake committed by the Bank clerk or a peon is not to be used against the complainant to non-suit him. Further notice had been sent. No reply was received. It would also indicate that what is stated in the notice is not controverted. It is true that mere non sending of a reply notice will not ipso facto prove the case of the complainant. But it is also an indicator to prove the case of the complainant. So the accused was able to create some confusion in the mind of the Court by referring to a mistaken account number. It was not proper on the part of the Court below to have thrown away the complaint on that ground. The materials available, the evidence of the Bank officials and the conduct of the Crl.A. 1548 OF 2003 -6- accused while cross examining PW1 all only lend credence of the case of the complainant. Further it is also to be stated that the non issuance of a reply notice adds to the same. Therefore I find that the Court below has erred in acquitting the accused. I find materials are sufficient to show that the accused had borrowed a sum of Rs.40,000/- and had issued Ext.P1 cheque towards the discharge of the liability which has been returned for insufficiency of funds. Therefore I find the accused guilty u/s 138 of the Negotiable Instruments Act. 7. Now turning to the question of sentence. I do not want to send the accused to jail for an indefinite period if he has got an inclination to pay the amount. It will be sufficient if a sentence is passed by directing him to undergo imprisonment till the raising of the Court and to pay a compensation of Rs.40,000/- under Sec. 357(3) Cr.P.C. which on realization shall be disbursed to the complainant and in default of which the accused has to undergo simple imprisonment for a period of two months. Crl.A. 1548 OF 2003 -7- In the result the Crl.Appeal is disposed of as follows. (1) The order of acquittal is set aside. (2) The accused is found guilty u/s 138 of the Negotiable Instruments Act and is convicted thereunder. (3) He is sentenced to undergo imprisonment till the raising of the Court and to pay a compensation of Rs.40,000/- u/s 357(3) Cr.P.C. which on realization shall be disbursed to the complainant. In case of default he shall undergo two months simple imprisonment. (4) The accused shall appear before the Court below on 15.10.2009 to receive the sentence and pay the compensation, failing which the Court below shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-