IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 CRL.A.No. 1078 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.44/2003 Dated 17/03/2003 CRA.152/2001 of ADDL.SESSIONS COURT, KOTTAYAM .................... APPELLANT(S): -------------- V. T. MATHEW VATTANTTATHIL MALUKAVU PO BY ADV. SRI.SEBASTIAN DAVIS RESPONDENT(S): --------------- 1. FR. T H. HEZAKIYIL THANNICKAL HOUSE MANKAMBO C.S.I. CHURCH CHOWOOR P.O. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ADV. SRI. DILEEP FOR R1 SRI.K.PAUL KURIAKOSE FOR R1 PUBLIC PROSECUTOR, SRI SABU SREEDHARAN FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2/11/2010, THE COURT ON 11.11.2010 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No: 1078 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 937 of 1997 on the file of Judicial First Class Magistrate, Erattupetta. The first respondent herein is the accused in that case which was filed by the complaint alleging commission of an offence under Section 138 of N.I. Act. 2. The allegation is that the accused borrowed an amount of Rs.2 lakhs from the complainant on 10.12.1996 and when the complainant demanded back that amount, the accused issued Ext.P1 cheque on 10-2-1997 for Rs.2 lakhs drawn on the Service Co - operative Bank, Melukavu and when the complainant presented the cheque for collection through his bank, it was dishonoured due to insufficiency of fund in the Crl. Appeal No: 1078 of 2002 :2: account of the accused. The complainant sent a lawyer notice to the accused demanding the amount. But the accused did not repay the amount and thereby and accused committed an offence punishable under Section 138 of N.I. Act. 3. In the Magistrate Court on the side of the complainant, the complainant examined himself as PW1 and Exts. P1 to P6 were marked. On the side of the accused DW1 to DW4 were examined and Exts. D1 to D4 series were marked. The learned Magistrate on considering the evidence found that the accused committed an offence punishable under Section 138 of N.I. Act and he was convicted and sentenced to undergo simple imprisonment for 3 months and to pay Rs.25,000/- as compensation to the complainant under Section 357(3) of Cr.P.C. Against that conviction and sentence the accused filed Cr.Appeal No. 152 of 2001 before the Sessions Court, Kottayam. That appeal was allowed and the conviction and sentence under Section 138 of N.I. Act was set aside and the Crl. Appeal No: 1078 of 2002 :3: accused was acquitted. Against that judgment and the complainant filed this criminal appeal. 4. Heard the learned counsel for the appellant and the learned counsel for first respondent/ accused. 5. The learned counsel for the appellant submitted that since the execution of Ext.P1 cheque is proved, the burden is on the accused to prove that the cheque was not issued in discharge of any liability and that the accused has not discharged that burden. Learned counsel for the appellant submitted that the learned Sessions Judge ought not have given much weight to the fact that there was some money transaction between the accused and the maternal grandfather of the complainant. The learned counsel for the appellant submitted that even though that fact is true, that will not preclude the accused from borrowing money from the complainant. The learned counsel for the appellant submitted that the learned Session Judge went wrong in finding that the accused rebutted Crl. Appeal No: 1078 of 2002 :4: the presumption available under Section 139 of N.I. Act. The learned counsel for the first respondent supported the judgment of the Sessions Court. 6. The case of the accused is that he had no financial transaction with the complainant and that he had borrowed Rs.32,000/- from one Mathew Kavukattu, the maternal grandfather of the complainant and issued a blank cheque to him and the said cheque was mis-used by the complainant for filing of the present complaint against him. From the defence case, it is clear that the accused is not admitting the execution of Ext.P1 cheque in favour of the complainant. 7. PW1 deposed that the accused borrowed Rs.2 lakhs from him on 10.12.1996. When he demanded back the amount, the accused issued Ext.P1 cheque dated 10.2.1997 drawn on the Melukavu Service Co-operative bank. He presented the said cheque before the Neeloor Service Co-operative Bank, Maryland branch for collection. The said bank forwarded Crl. Appeal No: 1078 of 2002 :5: Ext.P1 cheque to the drawee bank which in turn dishonoured the same due to insufficient funds in the account of the accused. Ext.P2 is the dishonour memo dated 28.5.1997 issued by the drawee bank. Ext.P3 is the memo from the bank of the complainant. It is dated 6.6.1997 and on that day the complainant received back the cheque along with the connected records. There upon the complainant has issued a notice through his lawyer on 13.6.1997 informing the accused about the dishonour of cheque and demanding the payment of cheque amount within the stipulated period. Ext.P4 is the copy of the notice dated 13.6.1997 and Ext.P3 is the postal receipt showing that the same was sent by registered post. The accused accepted the notice on 16.6.1997 as evident from Ext.P6 acknowledgment card. But he did not pay back the amount as demanded. 8. While appreciating the testimony of PW1 the following facts are to be taken into account. In cross- Crl. Appeal No: 1078 of 2002 :6: examination PW1 had admitted that when he was examined before the Magistrate Court he was aged 27 years and that when he lent Rs.2 lakhs to the accused as per Ext.P1 cheque, he was a student and he had no source of income. According to PW1, his brother V.T. Thomas was working in Gulf countries and he gave the money to PW1 for the purpose of their sister' s marriage which was proposed to be conducted in January 1998. PW1 admitted that his father and mother were alive at that time and when he paid the amount to the accused, his brother V.T.Thomas was in the house and he had not seen the payment made to the accused. As observed by the learned Sessions Judge, it is quite unbelievable that the brother will hand over such a huge amount to the complainant while his father and mother were alive. The complainant has not produced any document to show that, at the time of cheque transaction with the accused, th complainant had such a huge amount with him. Crl. Appeal No: 1078 of 2002 :7: 9. The maternal grandfather of the complainant is the father of DW2 and father in law of DW1. The terstimony of DW1 and DW2 would show that there was money transaction between the accused and the maternal grandfather of the complainant and demands were made through them by sending Exts.D2, D3 and D4 series letters to the accused. They denied the suggestion that Ext.P1 cheque was given by the maternal grandfather to the complainant. But they did not deny the suggestion that a blank signed cheque was given by the accused to the maternal grandfather of the complainant. On going through Ext.P1 cheque it seen that there is difference in ink in the signature of Ext.P1 and the other writing in the cheque. As observed by the learned Sessions Judge that probabilities the case of the accused that he gave a blank signed cheque to the maternal grandfather of the complainant which was mis used by him. The complainant has not examined his brother to prove that his brother gave Rs.2 lakhs to the Crl. Appeal No: 1078 of 2002 :8: complainant for the purpose of conducting marriage of their sister. Considering all these aspects of the matter, I am of the view that the learned Sessions Judge is perfectly justified in finding that the accused has rebutted the presumption under Section 139 of the N.I Act and in acquitting the accused on giving benefit of of doubt. Accordingly this Cr.Appeal is dismissed as it is without any merits. M. L. JOSEPH FRANCIS ( Judge) dl/