IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRL.A.No. 2009 of 2003() ------------------------------------- C.C. 425/2004 OF THE CHIEF JUDICIAL MAGISTRATE, KALPETTA ......... APPELLANT(S): COMPLAINANT ------------------------- T.SHIBU, PEARL HOUSE, CHUNDALE, P.O.CHUNDALE, WAYANAD DISTRICT. BY ADV. MR.A.K.SRINIVASAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. E.RAJEEV, PARVATHY NIVAS, KAPPAMKOLLY, MEPPADY, WAYANAD DISTRICT. 2. STATE OF KERALA, REP.BY LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.TOMY JOHN VETTATH FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== CRL.A. No.2009 OF 2003 ===================== Dated this the 16th day of July 2009 JUDGMENT This appeal is preferred against the order of acquittal passed by the Chief Judicial Magistrate Court, Kalpetta in C.C.No.425 of 2001. It is the case of the complainant that the accused, towards the discharge of liability of Rs.32,000/-, had issued a cheque on 17.10.2001 which when presented for encashment, it was returned with the endorsement 'insufficiency of funds'. A lawyer notice was issued for which a reply was sent raising false contentions. Since he did not pay the amount, the prosecution has been launched. 2. On the other hand, the accused would contend that the complainant is a money lender and he had pledged ornaments and at that time he had given a blank cheque as security which had been utilized by him for filing a false case. 3. In the trial court, PW1 was examined. Exts.P1 to P8 and Ext.D1 were marked. Now the point that arises for determination in the appeal is whether there are sufficient materials to hold that the complainant has CRL A.No.2009/2003 -:2:- succeeded in proving an offence under Section 138 of the Negotiable Instruments Act?. 4. Point: It is the specific case of the complainant that he had advanced a loan of Rs.32,000/- and towards the discharge of the same the accused had issued a cheque which when presented for encashment was returned with the endorsement 'insufficiency of funds'. PW1 would depose before the court in the same line and in cross examination, it is attempted to be suggested that the accused had taken money on pledging ornaments. Those transactions are marked as Ext.D1. He had answered that no ornaments were sold and if the documents are produced they would not show the same. So the defence is that there had been some previous transaction between the accused and the complainant and therefore the cheque which is given as security at that point of time had been utilized by the complainant. It has to be remembered that here the case is instituted not on behalf of any institution, but only on behalf of himself and it is a personal loan. Though a summons was issued to produce the documents relating to the transactions and in spite of producing the ledger extract the accused did not make use of the same obviously for the reason that if it is looked into it will be against the case. So, I had perused the photo copy of the said ledger extract, which is produced before the court below and there CRL A.No.2009/2003 -:3:- are 13 transactions between the bank and the accused ranging from 1999- 2000 and all the 13 transactions had been closed on receipt of cash which would indicate that nothing has been sold. Not only that it is not one solitary transaction but there are 13 transactions and there is no case for the accused that on all the 13 occasions, he had given blank cheques. So the case of the complainant that the amount was a personal loan given by himself not on behalf of the bank appears to be correct and acceptable. Just because one person runs a bank and the accused had pledged some ornaments, the court cannot jump into the conclusion that a cheque would have been given as security, especially in the back drop that there are 13 transactions and the case is that cheque is given as security. When normally gold is pledged, it is the biggest security one can offer and that is what PW1 has stated that for gold loan no other security is taken. It has also to be stated that the accused moved an application for recalling the complainant for further examination under Section 311 Cr.P.C. as C.M.P.No.1854/2003 and the court had allowed it on 4.3.2003. But, it is seen that he had not been further examined which means that the accused had foregone that prayer as well. So, the materials available are only the evidence of PW1 which shows that Ext.P1 cheque is issued towards the discharge of liability and all other statutory requirements under Section 138 CRL A.No.2009/2003 -:4:- of the NI Act are complied with and the defence has not been succeeded in rebutting the presumption under the Act. Therefore, I reverse the finding of the court below regarding acquittal and find the accused guilty under Section 138 of the NI Act. Regarding sentence, it has to be stated that it can be done by imposing fine instead of sentencing him to go to jail. I sentence him to pay a fine of Rs.32,000/- and in default to undergo SI for two months. In the result, Crl.appeal is allowed and the order of acquittal is set aside and the accused is found guilty under Section 138 of the NI Act and is convicted thereunder. He is sentenced to pay a fine of Rs.32,000/- and on realisation of the same, it shall be disbursed to the complainant on appropriate application. If the amount is not paid on or before 31.8.2009, the court below shall execute the sentence. M.N.KRISHNAN, JUDGE Cdp/-