IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 CRL.A.No. 2042 of 2005() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.642/2005 Dated 09/11/2005 ST.1816/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... APPELLANT(S)/COMPLAINANT :- ----------------------------------------------- ABDUL KHARIM, S/O. SULTHANPILLA, SEENA MANZIL, ALANTHARA, KOTTUKUNNAM DESOM, NELLANADU VILLAGE. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S)/ACCUSED :- ----------------------------------------- 1. M.A RAZAQ, THEMBAKALA VEEDU, THEMBAMMOODU, PULLAMPARA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCAT GENERAL HIGH COURT BUILDING, ERNAKULAM, KOCHI-31. ADV. SRI.K.C.CHARLES FOR R1 SRI.A.RAJAGOPALAN FOR R1 PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.2042 of 2005 --------------------------------- Dated this the 19th day of August 2011 J U D G M E N T The complainant is the appellant. His complaint against the first respondent was under Sec.138 of the Negotiable Instruments Act. The learned Magistrate acquitted the accused under Sec.255 (1) Cr.P.C. 2. The case of the complainant is that he is a contractor engaged in slaughtering of rubber trees in the property of the accused measuring an extent of 4 Acres for a total sum of Rs.3,05,000/-. Rs.5,000/- was paid by the complainant to the accused as advance. According to the complainant, when he went to the property and numbered the trees, there were only 636 rubber trees instead of 800 trees, which according to the accused were the total number of trees available in his property to be slaughtered. 3. According to the complainant, since there was Crl.A.No.2042 of 2005 -: 2 :- vast difference in the number of trees available, he wanted the accused to reduce the amount payable by him for slaughtering the trees. This was not agreed to by the accused. However, the accused agreed to repay the amount of Rs.5,000/-. According to the complainant the accused agreed to pay the amount incurred by the complainant as expenses which includes the interest payable by him to the person from whom he was stated to have borrowed the money. Thus, Ext.P1 cheque for Rs.12,500/- was issued by the accused. When the cheque was presented for collection, it was returned with the endorsement, 'payment stopped by the drawer'. Statutory notice was sent by the complainant. Reply was sent by the accused denying the liability. As the amount was not paid, the complaint was filed. 4. The complainant got himself examined as PW1 and Exts.P1 to P6 were marked. The accused and the Manager of the Bank were examined as DW1 and DW2 and Crl.A.No.2042 of 2005 -: 3 :- Exts.D1 to D6 were marked. After analysing the evidence, the learned Magistrate acquitted the accused under Sec.255(1) Cr.P.C. 5. The learned counsel for the appellant/complainant submits that on going through the evidence given by the complainant as PW1, it can be found without any difficulty that there was an agreement between the complainant and the accused with regard to the slaughtering of rubber trees from the property of the accused measuring an extent of about 4 Acres. There was no serious dispute regarding the fact that the amount originally agreed to be paid by the complainant to the accused towards value of the rubber trees to be slaughtered was Rs.3,05,000/-. But the accused would contend that it was not at all stated that the number of trees available in his property or agreed to be cut and removed was 800 and as such the contention that the actual number of trees available in the property was only 636 and so there was a request for reduction of the amount payable Crl.A.No.2042 of 2005 -: 4 :- by the complainant to the accused cannot be sustained. It is further submitted by the learned counsel for the accused that in evidence it was admitted by DW1 that he had received a sum of Rs.5,000/- from the complainant as advance, but he says, that amount was repaid by him to the complainant. 6. The case of the accused is that Ext.P1 was obtained by the complainant by threatening him at knife point, when he alone was in the house and as such Ext.P1 is vitiated by coercion and hence it is invalid and inoperative. This contention is resisted by the learned counsel for the complainant stating that though it was stated by the accused before the learned Magistrate that a complaint was filed by him by DW1- who is an advocate having more than 30 years of practice, he has not chosen to produce documents to show that the complaint filed by him was taken on file by the learned Magistrate. The learned counsel for the complainant would further submit that the Crl.A.No.2042 of 2005 -: 5 :- accused being an advocate, who knows very well that if the cheque is dishonoured due to insufficiency of fund he is likely to be prosecuted for the offence under Sec.138, he has chosen to send a stop memo to the bank and at the same time keeping sufficient amount in his account to honour the cheque to make it appear that the dishonour was on some other ground. Therefore, according to the complainant, the accused has adopted a clever advice to avoid the prosecution by keeping sufficient amount in his credit at the time of sending the stop memo. 7. The learned counsel for the complainant has relied upon the decision of the Apex Court in Rangappa v. Mohan [2010 (2) KLT 682 (SC)] to strengthen his submission that the accused cannot avoid liability under Sec.138 of the N.I.Act by issuing a stop memo making sufficient amount in his credit. Now the crucial question is whether the evidence given by DW1 that Ext.P1 cheque was issued as he was threatened by the complainant is Crl.A.No.2042 of 2005 -: 6 :- acceptable. The learned counsel for the complainant would submit that just a perusal of Ext.P1 would make it clear that it was filled up by the accused in his own handwriting without being threatened or intimidated by anybody. In other words, according to the complainant, Ext.P1 was executed by the accused out of free will and volition and as such it is not vitiated on any of the grounds as alleged by the accused. 8. After survey of the entire evidence, the contention by the defence that Ext.P1 is vitiated on the grounds as stated earlier is found to be unsustainable. Since it is in evidence that he paid Rs.5,000/- as advance and that the complainant had spent some amount for numbering the trees and also to pay interest for the amount obtained by him from the financier, I find that the cheque was supported by the consideration as well. All the statutory requirements are seen duly complied with. Hence the finding entered by the learned Magistrate is liable to be interfered with. The Crl.A.No.2042 of 2005 -: 7 :- accused is proved to have committed the offence punishable under Sec.138 of the N.I. Act. In the result, this appeal is allowed. The accused/first respondent is found to be guilty of the offence punishable under Sec.138 of the N.I. Act and he is convicted thereunder. He is sentenced to pay fine of Rs.10,000/- and in default to undergo S.I. for 15 days. The accused/first respondent will pay the fine amount within one month from today. N.K.BALAKRISHNAN, JUDGE. Jvt