IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 110 of 2003() ----------------------- CRA.275/2001 of ADDL. SESSIONS COURT, ALAPPUZHA CC.138/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... APPELLANT: RESPONDENT/COMPLAINANT ------------------------------------ C.G.PRASANNAN, AGED 48 YEARS, S/O. GANGADHARAN, RESIDING AT CHETTIPARAMBIL (PRASANTHY) HOUSE, PATTANAKKAD VILLAGE, UZHAVUMURI, VETTAKKAL P.O., CHERTHALA TALUK. BY ADV. SRI.V.J.JOHN RESPONDENTS: APPELLANT/2ND RESPONDENT/ACCUSED ----------------------------------------------- 1. K.B.RADHAKRISHNAN NAIR, AGED 40 YEARS, S/O. BALAKRISHNAN NAIR, RESIDING AT KUTTANCHERIL HOUSE, PANAVALLY VILLAGE, PANAVALLY P.O., CHERTHALA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (2ND RESPONDENT IN CRL.APPEAL NO.275/01) PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA SRI.BABU CHERUKARA FOR R1 SRI.ANZAR BASHEER FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.110 OF 2003 ............................................. Dated this the 24th day of August, 2009 J U D G M E N T This is an appeal preferred against the order of acquittal passed by the learned Additional Sessions Judge, Alappuzha in Crl.A.No.275/2001. The said appeal was preferred against the conviction and sentence passed by the learned Judicial First Class Magistrate-I, Cherthala in C.C.No.138/1997 whereby the accused was convicted and sentenced to undergo S.I for two months and to pay a fine of Rs.5,000/= and in default imprisonment for one month. 2. The evidence in this matter consists of the oral testimonies of PWs 1 and 2, DWs 1 to 3 and also Exts.P1 to P10 and D1 to D3. It is the case of the complainant that the accused had borrowed a sum of Rs.8,900/= and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement refer to drawer. Thereafter a statutory notice was issued and it is alleged that it was replied with false allegations and thereafter prosecution was launched. : 2 : CRL.A.NO.110 OF 2003 3. On the contra, the case of the defence appears to be a very long story. The accused is having one agency called K.M Agencies. According to him, the complainant is having an agency called Radha Agencies. Radha agencies used to supply cement to K.M. Agencies and for the purpose of the same a cheque was given as security. It is submitted that there was an agreement between the complainant and the accused to sell 35 cents of land for a consideration of Rs.1,55,000/=. Rs.7,750/= was given as advance and according to the accused, the complainant committed breach and therefore he did not repay the amount. So, making use of the cheque given as security for the purpose of the cement business, the complainant has filed a false case. The court below rejected the said defence and convicted the accused. The appellate court found it otherwise and rejected the case of the complainant and acquitted the accused. Now, it has become the duty of this Court to find out which is correct. 4. I had gone through the evidence tendered in this case and also heard elaborately the arguments submitted by : 3 : CRL.A.NO.110 OF 2003 counsel for both sides. The accused in brief would submit that he had given a cheque as security for the cement business. But in the cross examination PW1 would submit that he had not given any signed cheque and not seen the signature of the accused in the agreement, Ext.D2. The complainant had forged his signature and created a document. One cannot eschew even for a minute that when two parties are doing business one party will receive the cheque leaf as a security. It is too much to believe that such a security will be given. 5. I do not want to analyse the case of the accused first to understand the case of the complainant. Straight away it can be seen from the evidence of Pw1 that the accused on 1.9.1996 wanted a loan of Rs.10,000/= and as the complainant was only having Rs.8,900/= he had given that amount and on that day itself, the accused had issued a cheque with the request that he must be given 5 months time and therefore it was treated as a security for the amount paid. Thereafter the cheque was presented and subsequent things had arisen. A lawyer notice was issued. : 4 : CRL.A.NO.110 OF 2003 It is stated in the lawyer notice- Ext.P4 that the accused had borrowed a sum of Rs.8,900/=. The name of the complainant is C.G. Prasannan. A reply notice was issued to Ext.P4. In Ext.P7 reply notice it is stated that one C.G. Prathapan who had issued the notice is not known to the accused and his definite case in the reply notice is that the accused had given a cheque to the third person and that had been utilised by the complainant to file a case of this nature. Neither the question of Radha Agencies or K.M. Agencies nor an agreement to sell or advancement of the amount find a place in the reply notice issued by the accused. When it reaches the stage of trial, almost all possible contentions had been taken out. It is true that the complainant also should have been more free to state the actual facts before the court. He had admitted at least that Radha agencies is conducted by his wife and his father is looking after the business. He pretends total ignorance about the business transaction. It will not have any relevance so far as this case is concerned for the reason that there is nothing to connect that such a security has been given in the : 5 : CRL.A.NO.110 OF 2003 transaction between the agencies and it is not on the basis of some amount due under the agency business, according to the accused, the cheque is given. He has got another case. He would submit that there was an agreement to sell the property and there was advancement of the amount and the complainant committed breach of the contract. Therefore, the accused did not give back the amount and it is for that purpose, the cheque is said to be created. 6. As stated by me earlier, innumerable number of confusions are attempted to be created and they remain as confusion alone not as solid proof and it has also to be remembered that he has got a case that he not sign the cheque at all. PW1 as a complainant had deposed about the demand of money, how the accused came to his house and how Rs.8,900/= was given. These things are stipulated in the complaint as well in the evidence. 7. I am conscious of the fact that the burden of proving the case of the prosecution lies on the complainant and it will never shift. But it will shift when execution is proved and presumption is drawn. It is also the settled principle : 6 : CRL.A.NO.110 OF 2003 that no accused can be compelled to let in evidence and the court cannot comment upon non-addusal of the evidence of an accused. 8. As discussed by me earlier the complainant has got a consistent case. He speaks about the advancement, execution of the cheque as well as the stop payment. But the accused did not have any case at all in the reply notice and according to him the cheque was issued to a third party. Then he changes and states that the cheque leaf was given for the purpose of security for the agency business and lastly it is submitted that there was an immovable property transaction and the amount was due to the complainant and he had misused that cheque for filing the case. Thus, they are all totally inconsistent. 9. Therefore on an analysis of the entire evidence available, I agree with the finding of the trial court that the accused had taken a loan and towards the discharge of the liability had issued a cheque which when presented for encashment was not honoured. But the learned Sessions Judge considered it altogether in a different angle without : 7 : CRL.A.NO.110 OF 2003 analysing the actual factual matrix which he should have considered. Therefore, I set aside the order of acquittal passed by the learned Sessions Judge and find the accused guilty under Section 138 of the N.I.Act 10. Now turning to the question of sentence. If the accused is desirous of paying the amount, I do not want to send him to prison indefinitely. Therefore a nominal punishment till the rising of the court and payment of compensation of Rs.8,900/- under Section 357(3) of the Cr.P.C will be sufficient. 11. In the result the criminal appeal is disposed of as follows: 1. The order of acquittal passed by the learned Sessions Judge is set aside and the accused is found guilty under Section 138 of the N.I.Act. 2. The sentence passed by the learned Magistrate is modified and the accused is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.8,900/= to the complainant under Section 357(3) of the Cr.P.C failing which he shall undergo S.I for two months. : 8 : CRL.A.NO.110 OF 2003 3. The accused shall appear before the trial court to receive the sentence and to pay the compensation on 1.12.2009 and if it is not done, the trial court is directed to execute the sentence. M.N.KRISHNAN, JUDGE cl : 9 : CRL.A.NO.110 OF 2003 M.N.KRISHNAN, J. ........................................ CRL.A.NO.110 OF 2003 ........................................ 24th day of August, 2009 J U D G M E N T