IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 CRL.A.No. 847 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.136/2004 Dated 27/02/2004 CC.74/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... APPELLANT: COMPLAINANT: ------------------------------------------ SHIHABUDEEN, PANANGATTUPUTHEN VEEDU, URUKUNNU, REPRESENTED BY THE POWER OF ATTORNEY HOLDER ABDUL KARIM, S/O. MOHAMMED MYTHEENKUTTY. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): ACCUSED: ----------------------- 1. NARAYANAN GANGADAS, PANKAJA BHAVAN, PERUNTHALOOR, KALANJOOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 SRI.P.B.KRISHNAN FOR R1 SRI.R.SURAJ KUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON 02/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 847 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 74 of 2000 on the file of the Judicial First Class Magistrate, Punalur against the judgment of acquittal dt.4.11.2003. 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. The case of the appellant/complainant is briefly as follows. On 20.1.1998, the first respondent/accused borrowed Rs. 1.5 lakhs from the appellant and for repayment of the said amount the accused issued Ext.P2 cheque dt. 21.2.1998 drawn on the Urukunnu Service Co-operative Bank. The appellant/ complainant presented the cheque for collection through his bank, but it was dishonoured with the endorsement 'funds Crl.A. No. 847 of 2004 2 insufficient' in the account of the accused. Ext.P7 lawyer notice was issued calling upon the accused to repay the amount. But no amount was paid. Hence the complaint was lodged. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P8 were marked. On the defence side DW1 was examined and Exts.D1 to D7 were marked. The learned Magistrate, on considering the evidence, disbelieved the defence case, but acquitted the accused under Section 255 Cr.P.C. on the ground that Account No.7336 of Urukunnu Service Co-operative Bank is in the name of one N. Anil and not in the name of the accused Ganga Das and as such the complainant failed to prove that the accused committed the offence under Section 138 of the N.I. Act. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the finding of the court below that Account No.7336 is not maintained by Crl.A. No. 847 of 2004 3 the accused is wrong and illegal. The learned counsel submitted that the accused himself has admitted in his reply notice and in Ext.D5 complaint that Account No.7336 was maintained by him and that Ext.P2 cheque was issued to him by the bank. The learned counsel for the appellant submitted that the court below should have compared the admitted signatures of the accused in his Vakalath, deposition, Section 313 Cr.P.C. statement etc. with the signature in Ext.P2 and it would have been seen that all the signatures are put by the accused. The learned counsel for the first respondent supported the judgment of acquittal. 6. The Power of Attorney holder of the complainant was examined as PW1. Ext.P1 is the Power of Attorney executed by the complainant in favour of PW1. PW1 deposed that on 20.1.1998 the accused borrowed Rs.1.50 lakh from the complainant and when the complainant demanded back that amount, the accused issued Ext.P2 cheque for that amount dt. 21.2.1998 of Urukunnu Service Co- operative Bank. PW1 deposed that when Ext.P2 cheque was Crl.A. No. 847 of 2004 4 presented for collection, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P3 is the dishonour memo and Ext.P4 is the intimation. 7. PW1 deposed that the complainant issued a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount, which was accepted by the accused. Ext.P7 is the copy of the lawyer notice and Ext.P6 is the postal acknowledgment. Ext.P8 is the certified copy of the ledger folio of Account No. 7336 of Urukunnu Service Co-operative Bank in the name of Anil, Pankaj Bhavan. 8. When the accused was questioned under Section 313 Cr.P.C., he stated that he borrowed Rs.20,000/- from PW1 and issued the R.C. book of his vehicle and he did not give any cheque to PW1. PW1 is one of the staff members of Urukunnu Service Co-operative Bank and he obtained 10 cheque leaves from that bank and filed this case against the accused. Crl.A. No. 847 of 2004 5 9. The accused was examined as DW1. He deposed that the jeep bearing No. KL 3/C 4521 belonging to him was running in Pathanapuram stand and when the accused came to R.S.P. office with his uncle, he had acquaintance with PW1. When the jeep was plying in Pathanapuram the accused found it difficult to remit the C.C. and the accused talked over the matter with one Santhosh, the neighbour of PW1. The vehicle was entrusted with Santhosh and PW1 was looking after the affairs of that jeep and PW1 was maintaining account and PW1 issued signed accounts and that Ext.D1 is the book of account. Ext.D2 series are the copies of permit and Ext.D3 is the copy of the R.C. 10. DW1 deposed that for the purpose of building the body of the jeep he required Rs.25,000/- The work of the jeep was conducted at Pathanapuram and Rs.20,000/- was given by the accused. That amount was borrowed from one Babu and he demanded one cheque leaf and Rs.50/- stamp paper and as the accused had no cheque leaf and as the cheque leaf was not available with the accused, PW1 introduced Crl.A. No. 847 of 2004 6 the accused to the bank and one account was started in the name of the accused. DW1 deposed that ten cheque leaves are with PW1. DW1 further deposed that he has not signed any cheque. 11. In cross examination DW1 admits that in Exts.D1 to D3 the name of PW1 is not mentioned. DW1 admits his signature in his Vakalath and in the postal acknowledgment. DW1 admits that it is true that money was borrowed from the complainant and there is no document to show that the amount was repaid. Ext.D5 is the copy of the private complaint filed by the accused against PW1 and one Nazar Khan. In Ext.D5 it is stated by the accused that PW1 introduced DW1 to Urukunu Service Co-operative Bank and DW1 opened Account No. 7336 and he obtained a cheque book. Therefore, the case of the accused herein that Ext.P8 account is not in his name cannot be accepted as true. In Ext.D5 the house name of DW5 is given as Pankaj Bhavan, 12. Under Section 73 of the Evidence Act, the court is empowered to compare the disputed signature with the admitted Crl.A. No. 847 of 2004 7 signature. On comparing the admitted signature of the accused in the postal acknowledgment and Section 313 statement with the disputed signature of the accused in Ext.P2 cheque and on appreciating the testimony of PW1 in the light of that comparison, I am of the view that Ext.P2 cheque was executed by the accused in favour of the complainant. Since execution of Ext.P2 cheque is proved, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. 13. As observed by the learned Magistrate, the defence case cannot be accepted as true. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, he is convicted for that offence. 14. Section 386(a) of Cr.P.C. makes it clear that the Appellate Court is empowered to impose sentence once it concludes that the offence has been committed by the accused. Crl.A. No. 847 of 2004 8 15. 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.1,50,000/- would meet the ends of justice. 16. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 74 of 2000 on the file of the J.F.C.M. II, Punalur under Section 255(1) is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.1,50,000/- 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 Crl.A. No. 847 of 2004 9 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, he shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm