IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 CRL.A.No. 1307 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.254/2003 Dated 03/07/2003 CC.298/2001 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... APPELLANT: COMPLAINANT: -------------------------------------------- T.V.KUNHABDULLA, THANKACHANTAVIDA HOUSE, KUTTIPRAM AMSOM DESOM, VADAKARA TALUK. BY ADV. SRI.T.G.RAJENDRAN SRI.K.SHIBILI NAHA RESPONDENTS: ACCUSED AND STATE: --------------------------------------------------------------- 1. NANU S/O. CHATHU, KINARULLATHIL HOUSE, P.O.AROOR, AROOR AMSOM DESOM, VADAKARA TALUK. 2. STATE OF KERALA REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.R.SIVAKUMAR FOR R1 BY PUBLIC PROSECUTOR SRI. C.M.KAMMAPPU – R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.GIRI, J. ------------------------- CRL.A.No.1307 of 2003 C ------------------------- Dated this the 22nd day of August, 2008. JUDGMENT The complainant in C.C.No.298/01 on the file of the Judicial Magistrate of the First Class, Nadapuram, is the appellant. The complaint was instituted on the allegation that the accused, in discharge of a debt, issued Ext.P1 cheque for an amount of Rs.40,000/-. The same, on presentation, was dishonoured due to insufficiency of funds. Though Ext.P4 notice was issued and served on the accused, there was neither reply nor payment. Hence it was alleged that the accused has committed an offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 2. The accused entered appearance and pleaded not guilty. The complainant was examined as PW.1. Exts.P1 to P5 were marked. Going by the version put forward by the accused at the stage of statement under Section 313 of the Cr.P.C. and at the time of cross-examination of PW.1, the deposition of the accused himself as DW.1 and the evidence adduced through Dws.2 and 3, the stand CRL.A.No.1307 of 2003 :: 2 :: taken by the defence was that there was a property transaction between the complainant and the accused as evidenced by Ext.D1 document. An extent of approximately 2 acres of land was sold by the complainant to the accused for an amount of Rs.20,000/-. Ext.D1 is the registration copy of the document executed in this behalf. The version of the accused is that though an amount of Rs.20,000/- was the total sale consideration, initially an amount of Rs.1,000/- was paid. Thereafter, a further amount of Rs.14,000/- was paid on the date of registration. The balance amount of Rs.5,000/- was withheld by the purchaser on the ground that there was a dispute with regard to the measurements of the property and that the vendor was not in a position to hand over possession of the property as such. That, since an amount was being withheld on the insistence of the complainant, the accused had signed a blank cheque and handed over the same to the complainant. That, thereafter when the accused had demanded the complainant to return the cheque, it was not done. That, the original of Ext.P1 was never handed over to the purchaser. It is further contended that a portion of the property purchased CRL.A.No.1307 of 2003 :: 3 :: by the accused under Ext.D1 was, in turn, sold by him to a stranger. The explanation sought to be offered in this regard, by the accused was that even though he had sold a portion of the land, he had never come into possession of the property covered by Ext.D1 at that point of time. The defence taken up by the accused is sought to corroborated by the testimony of Dws.2 and 3, DW.2 alleged to be a witness to the negotiation between the complainant and the accused and DW.3 being a scribe witness in Ext.P1 document. The court below accepted the version of the accused and this has resulted in the acquittal of the accused. 3. I heard learned counsel for the appellant Sri.T.G.Rajendran. 4. Sri.Rajendran submitted that there is absolutely no connection between the transaction evidenced by Exts.P1 and P1(a). Admittedly, the complainant and the accused were acquainted with each other even previously. A perusal of Ext.D1 document will show that all aspects relating to the transaction is seen to have been completed on the date of registration of the document itself. The vendor acknowledges the receipt of the entire CRL.A.No.1307 of 2003 :: 4 :: amount and the purchaser acknowledges the receipt of possession of the property therein. If that be so, the accused cannot be later heard to say that Ext.P1 cheque was issued as a security for payment of the balance consideration. 5. I am inclined to accept this contention. Firstly, the case set up by the accused runs completely counter to the recital contained in Ext.D1 document. Secondly, even otherwise, the version given by the accused does not seem to be correct for more than one reason. Firstly, the accused did not take any steps whatsoever against the complainant, at any point of time, for the alleged enforcement of any residuary obligation remaining with the complainant and emanating from Ext.D1 transaction. There is no evidence to show that, at any point of time, the accused had made a complaint before any forum or even sent a notice to the complainant alleging that he has not been put in possession of the property covered by Ext.D1 or that there are still mutual obligations to be discharged between the vendor and purchaser of the property. CRL.A.No.1307 of 2003 :: 5 :: 6. Secondly, and most importantly, the crucial aspect is that, the accused kept silent in spite of the receipt of the original of Ext.P4 notice. Ext.D1 document is dated 7.12.2000 and Ext.P1 cheque is dated 7.3.2001. Going by the version of Dws.1 to 3, apparently, a demand had been made by the accused to the complainant in January, 2001, reminding him of the further obligations to be discharged by the complainant. Apparently that was not done. If that be so, it is clear that the most natural conduct on the part of the accused would have been to straight away controvert Ext.P4 notice. That was not done. This, in my view, is a special circumstance especially in the nature of the defence set up by the accused as such. Thirdly, the accused himself had sold a portion of the property which he purchased under Ext.D1 to a stranger. It belies comprehension as to how he could transfer a portion of the property covered by Ext.D1 unless he himself had accepted that the entire transaction as evidenced by Ext.D1 had been completed either on the date of Ext.D1 or at any time subsequent thereto, but prior to the date when he is purported to have transferred a CRL.A.No.1307 of 2003 :: 6 :: portion of the property. There are grave inconsistencies in the version given by the accused. 7. Therefore, I am of the view that the court below had committed a serious error in proceeding to hold that the evidence adduced by the accused is sufficient to dislodge the statutory presumption which the complainant is entitled to draw under Section 139 of the Act. The evidence let in by the complainant, in my view, is sufficient to prove that the accused has committed an offence under Section 138 of the Act. 8. For all these reasons, the appeal is allowed. The order of acquittal is set aside. The accused is found to have committed an offence under Section 138 of the Act and I hold that the accused is guilty of the offence under Section 138 of the Act. In the facts and circumstances of the case, it is appropriate that a suitable sentence is imposed on the accused by the court below. I adopt this course especially in the light of the fact that I have not been benefited by any submissions on behalf of the accused. CRL.A.No.1307 of 2003 :: 7 :: 9. Accordingly, the case is remanded back to the court below for the limited purpose of imposing a suitable sentence on the accused for the offence under Section 138 of the Act. 10. The parties shall appear before the court below on 13.10.2008. The lower court records shall be transmitted forthwith. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge