IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 CRL.A.No.202 of 2008 (A) ------------------------------ ORDER IN CRL.L.P.1163/2007 Dated 22/11/2007 CC.155/2007 OF JUDICIAL FIRST CLASS MAGISTRATE-III, KOTTARAKARA. .................... APPELLANT: COMPLAINANT -------------------------------- AMBUJAKSHAN, KAVUVILA HOUSE, KARIKKAMURI, PUTHOOR VILLAGE, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENTS: ACCUSED & STATE ----------------------------------------- 1. B.SUDHAKARAN, KRISHNAVILASOM VEEDU, KOLANNOOR MURI, EZHUKONE VILLAGE, KOLLAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.202 of 2008 ------------------------------------------------ Dated this the 8th day of April, 2008 JUDGMENT The complainant in C.C.155/07 on the file of the Judicial First Class Magistrate's Court-III, Kottarakkara is the appellant. He assails in this appeal the acquittal of the first respondent by the Magistrate of offence punishable under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 2. The appellant filed complaint in the court below alleging inter alia that in discharge of an amount of Rs.71,000/- due from the first respondent to him the first respondent had issued him cheque No.334261 drawn on his account No.12441 with the Indian Overseas Bank Ezhukon branch; that on presentation of the cheque for encashment the said cheque was dishonoured for reason of insufficiency of funds in the account of the first respondent to honour the said cheque; Crl. Appeal No.202 of 2008 -2- that thereupon, the appellant had filed complaint against the first respondent as C.C.929/03; that during the pendency of the said complaint, the first respondent paid Rs.30,000/- to the appellant and for the balance Rs.41,000/- cheque No.334269 was issued to him drawn on the same account of the first respondent with the Indian Overseas Bank and accordingly, C.C.929/03 was withdrawn that the understanding was that the amount of Rs.41,000/- would be deposited by the first respondent in his account within a period of three months; that on forwarding of the said cheque for collection through the Kottarakkara branch of the State Bank of Travancore it was returned dishonoured assigning the reason “funds insufficient” and the dishonour memorandum was received by him on 07/09/05; that thereupon, notice was caused to be issued to the first respondent on 27/09/05 intimating him of the dishonour of the cheque and Crl. Appeal No.202 of 2008 -3- demanding payment of the amount covered by the said cheque; and that was received by the first respondent and acknowledgment card was received by the appellant on 10/10/05; that the first respondent has not cared to issue any reply to the said notice and has also not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate registered the complaint on the file of his court as C.C.155/07 taking cognizance of the offence under Section 138 of the N.I. Act. On appearance of the first respondent in the court below pursuant to issuance of summons, he was served with copies of all relevant records in the case and was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, Crl. Appeal No.202 of 2008 -4- he pleaded not guilty and consequently a trial of the case was conducted by the court below. 4. On the side of the appellant he tendered evidence as PW1 and got marked in evidence Exts.P1 to P11. On the appellant closing his evidence the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he admitted that he received Ext.P4 notice under Ext.P6 postal acknowledgment card. According to him, he is a PWD contractor and the appellant is a business man; that 80% of the amount due to him by way of cost of material purchased was paid and the balance was to be paid on encashment of bill; that in relation to a work that was entrusted with him which was to commence on a particular day the appellant was to effect supply of materials; that materials were not supplied Crl. Appeal No.202 of 2008 -5- though the machines were set for the work and on enquiry it was understood that the materials were not supplied with a view to see that the function does not take place and that was done in collusion with a relative of the appellant who was running the Thampuran Memorial School; that therefore, he did not purchase materials from the appellant; that as the said work could not be executed he did not purchase materials from the appellant even after getting encashed bill from the Kottarakkara Panchayath and the complaint was filed by the appellant on account of animosity he entertained towards him on that count. 5. His further case is that due to intervention of mediators he paid an amount of Rs.30,000/- and for the balance Rs.15,000/- due to the appellant cheque for Rs.41,000/- was issued; that he has paid the amount to the appellant through one Jayaprakash in whose presence the cheque was torn and spoiled by Crl. Appeal No.202 of 2008 -6- the appellant himself; that the appellant was having also two or three of his blank cheques with him; that he was having a major work under the Irrigation Department at Pooyappalli; that the appellant demanded that the materials for the same should be purchased from him and he refused to abide by the said request and it is therefore, that the present complaint is filed by the appellant and caused him to be arrested on warrant. 6. On the defence side DW1 is examined. On a consideration of the evidence so adduced in the case, the learned Magistrate came to the conclusion that the preponderance of probabilities are in favour of the defence version of discharge having been effected and consequently, acquitted the first respondent of the offence under Section 138 of the N.I. Act. Hence, this appeal. 7. It is contended before me by the learned counsel for the appellant that the Crl. Appeal No.202 of 2008 -7- issuance of original of Ext.P1 cheque cannot be disputed by the first respondent in view of Ext.P8 application filed in C.C.929/03 reporting settlement of the matter receiving Rs.30,000/- in cash and the balance vide cheque No.334269 copy of which is Ext.P1 and the consequent withdrawal of the case ordered by the Magistrate vide Ext.P9 order and that loss of original of Ext.P1 on 19/02/07 has been reported also to the police as evidenced by Ext.P10 and the acknowledgment card thereof is issued from the Police Station which is marked Ext.P11. 8. It is true that as contended by the learned counsel for the appellant the filing of Ext.P8 application as C.M.P.3247/05 in C.C.929/03 seeking withdrawal of the case making statements therein to the effect that Rs.30,000/- is received and for the balance amount of Rs.41,000/- the original of Ext.P1 cheque is issued is not disputed by the first Crl. Appeal No.202 of 2008 -8- respondent. Thus, issuance of the original of Ext.P1 cheque stands established and in view of Ext.P8 and the orders passed thereon vide Ext.P9 to the knowledge of the first respondent he cannot contend that the original of Ext.P1 had not been issued by him for the balance amount of Rs.41,000/- payable to the appellant. The said cheque has been dishonoured on presentation for want of sufficiency of funds in the account of the first respondent and that stands established by Ext.P2 memorandum and Ext.P3 cheque return remittance memo. The first respondent has admitted receipt of original of Ext.P4 notice under Ext.P6 postal acknowledgment card, when questioned under Section 313 Cr.P.C. He has no case that within the statutory period after receipt of original of Ext.P4 notice he has made payment of the amount covered by the cheque. Hence, cause of action for a complaint under Section 138 of the N.I. Act undisputedly Crl. Appeal No.202 of 2008 -9- has arisen. According to the first respondent, the actual amount that was payable was only Rs.15,000/- and that was paid and in the presence of one Jayaprakash through whom the amount was paid the appellant has torn and destroyed the original of Ext.P1 cheque. In view of the said stand taken in defence by the first respondent, Jayaprakash mentioned by him in his statement under Section 313 Cr.P.C is a material witness and he should have been examined by the first respondent to establish his contentions. On the other hand, the first respondent has examined one Ajayakumar as DW1 whose presence while settling the matter had not been stated by the first respondent when questioned. According to DW1, he was the one who obtained Rs.15,000/- from the first respondent that was due to the appellant and delivered it to the appellant. He has deposed that the appellant showed him a cheque stating that it is cheque signed by the first Crl. Appeal No.202 of 2008 -10- respondent and that it is cheque for Rs.41,000/-; that the appellant further stated that some more amounts are due from the first respondent and that they will settle it between themselves and he tore off and destroyed the said cheque in his presence. He is not aware of the date on which this has happened but asserts that it was before 19/02/07 on which day according to the appellant, he lost the cheque from his possession. The first respondent having miserably failed to establish his case that he made payment of Rs.15,000/- which alone was the actual amount due; that the payment was being so made by one Jayaprakash and in his presence the cheque was torn off by the appellant and has attempted to develop a some what different case through one Ajayakumar examined as DW1 he was not able to prove either of the said case and the fact that he issued the original of Ext.P1 to the appellant Crl. Appeal No.202 of 2008 -11- stands established by Exts.P8 and P9 as also by the stand taken by the first respondent in defence. Going by the case of the appellant and the first respondent, the original of Ext.P1 is not in existence and as to what happened to the original of Ext.P1 the appellant and the first respondent are having different versions. As already discussed above the versions set up by the first respondent is shown to be false in view of the inconsistent stand taken by the first respondent while giving statement under 313 and while letting in evidence through DW1. On the other hand, the fact of loss of cheque is seen to have been reported to the police on 20/02/07 by the appellant vide Ext.P10 and that is seen acknowledged also by the police under Ext.P11 receipt. The evidence adduced in the case by both sides as discussed in the foregoing paragraphs highly probabilise the truth in the case of the appellant and has improbabilised Crl. Appeal No.202 of 2008 -12- the case of the first respondent. The learned Magistrate in the circumstances, was wrong in holding that the preponderance of probabilities is in favour of the contentions raised by the first respondent and that the case of the appellant does not stand proved. Consequently, therefore, the acquittal of the first respondent by the court below deserved to be set aside. 9. The first respondent has no case that the dishonour of the cheque was not for reason of insufficiency of funds in his account but for any other reason or that statutory requirements which are prerequisites for the maintainability of a complaint under Section 138 of the N.I. Act do not stand complied with in the instant case. I am also satisfied that the above conditions are satisfied in the instant case and that the dishonour of the cheque copy of which is Ext.P1 was for reason of insufficiency of funds in the account of Crl. Appeal No.202 of 2008 -13- the first respondent to honour the said cheque. 10. In the result, in reversal of the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act by the court below, I find the first respondent guilty of offence punishable under Section 138 of the N.I. Act and convict him thereunder. For questioning the first respondent regarding the sentence posted to 11/04/08. K.P.BALACHANDRAN, JUDGE kns/- Crl. Appeal No.202 of 2008 -14- 26/05/08 The matter is posted to this day for questioning the first respondent regarding sentence. The first respondent is not present, but his Counsel is present and he submits that the entire amount covered by the cheque has been paid and counsel for the appellant also submits that the entire amount covered by the cheque has been received. The submission is recorded. In the result, I sentence the appellant to pay a fine of Rs.2,000/- only. K.P.BALACHANDRAN, JUDGE kns/-