IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 CRL.A.No. 1979 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.340/2003 CRA.690/2002 of ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM C.C. NO.333/2000 OF J.F.C.M. -II, ERNAKULAM .................... APPELLANT/RESPONDENT/COMPLAINANT: -------------------------------------------------------------- K.K.RAJAN, S/O. KUMARAN, KUNDAPARAMBIL HOUSE, KOMBARA, MARKET ROAD NORTH, KOCHI - 14. BY ADV. SRI.S.K.BRAHMANANDAN RESPONDENTS/ APPELLANT/ACCUSED: ------------------------------------------------------- 1. ASHA MUKUNDAN, S/O. MUKUNDA SWAR, MAROTTICKAL HOUSE, ERATTAKULANGARA PACHALAM P.O., KOCHI. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.DIVAKARAN FOR R1 SRI.BINOI GEORGE (CHERUKARA) FOR R1 SRI.VINUCHAND FOR R1 R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON 15/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1979 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 333 of 2000 on the file of the Judicial First Class Magistrate - II, Ernakulam The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. The accused borrowed a sum of Rs.1,00,000/- from the complainant. Towards the discharge of the said debt, the accused issued a cheque for Rs.1,00,000/- dated 18.12.1998. When the cheque was presented, it was dishonoured on the ground that 'account closed' vide intimation dt.16.6.1999. The complainant informed the accused about the dishonour of the cheque by registered notice dt. 23.6.1999, which was received by the accused on Crl.A. No. 1979 of 2003 2 28.6.1999. But she did not pay the cheque amount. She sent a reply notice denying her liability. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 and C1 were marked. On the defence side, Dws.1 to 3 were examined. The learned Magistrate, on considering the evidence, found that the accused has committed the offence under Section 138 of the N.I. Act and she was sentenced to undergo S.I. for six months and to pay a fine of Rs.5,000/- in default to undergo S.I. for 30 days. If fine is realised, Rs.4,000/- shall be given to the complainant as compensation under Section 357 Cr.P.C. The appeal filed by the accused as Crl.A.No. 690 of 2001 before the Additional Sessions Court, Ernakulam was allowed and the accused was acquitted on finding that the accused had rebutted the presumption under Section 139 of the N.I. Act. Against that judgment the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 1979 of 2003 3 5. The learned counsel for the appellant submitted that the finding of the lower appellate court that Ext.P1 cheque was given to one Remesan during the year 1996 by the husband of the accused was not based on any reliable evidence. The learned counsel for the appellant submitted that the accused has not rebutted the presumption under Section 139 of the Act. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., her case is that she had some transaction with one Remesh, her husband's co-brother and in connection with that transaction she had issued a signed blank cheque to the said Remesh and that Remesh would have handed over that cheque to the complainant and at his instigation the complaint was filed against her. For proving her case, the accused examined Dws. 1 to 3. 7. DW1 is the husband of the accused. DW1 deposed that Ext.P1 cheque belongs to the accused and that he gave that cheque to his co-brother Remesh in 1996 when he borrowed Rs.50,000/- from Crl.A. No. 1979 of 2003 4 him and that Ext.P1 is one of the two blank signed cheques issued to Remesh at that time. DW1 deposed that when he paid back the amount to Remesh in 1997 and asked for return of the cheque, Remesh told him that the original cheque leaves were lost and he gave photocopies of those cheques. In answer to the question put by the trial court, DW1 deposed that when Remesh informed him about the loss of the cheque leaves, that fact was not intimated to the bank. DW2 is the father of the accused. DW2 deposed that Remesh is the husband of his younger daughter Anitha. In cross examination DW2 deposed that he has no direct knowledge about the transaction between the accused and the complainant. DW3 deposed that he does not know anything about the transaction between the complainant and the accused. The accused has not gone to the witness box to prove her case. She has not examined Remesh to substantiate her case. In the absence of such case, the lower appellate court is not justified in finding that the accused had rebutted the presumption under Section 139 of the N.I. Act. Crl.A. No. 1979 of 2003 5 8. When the complainant was examined as PW1, he deposed that the accused borrowed Rs.1,00,000/- on 18.12.1998 and for repaying that amount the accused issued Ext.P1 cheque. When PW1 presented that cheque for encashment, it was dishonoured as the account was closed. Ext.P2 is the dishonour memo and Ext.P3 is the memo. PW1 sent Ext.P4 lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount, which was received by the accused, but she did not repay the amount. Ext.P5 is the postal acknowledgment. Ext.P6 is the reply notice. Ext.C1 is the copy of ledger in connection with Ext.P1 account. 9. In cross examination PW1 stated that the accused put her signature in Ext.P1 cheque in his presence and that before putting her signature other entries were already filled up. In appreciating the testimony of PW1 in the light of the defence case, I am of the view that the case of the complainant that the accused issued Ext.P1 cheque appears to be genuine. Crl.A. No. 1979 of 2003 6 10. Since execution of Ext.P1 cheque is proved by the complainant, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. But the evidence adduced from the side of the accused is not sufficient to rebut that presumption. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned appellate court is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, she is convicted for that offence. 11. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,00,000/- would meet the ends of justice. Crl.A. No. 1979 of 2003 7 12. Accordingly this appeal is allowed. The judgment of acquittal in Crl.A. No. 690 of 2002 on the file of the Additional Sessions Court, (Adhoc-II) Ernakulam is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and she is sentenced to pay a fine of Rs.1,00,000/- The said fine shall be paid to the appellant as compensation under Section 357 (1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid period, she shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm Crl.A. No. 1979 of 2003 8