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. 1631 of 2003() ------------------------ CC.451/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT/COMPLAINANT: ------------------------------------------- P.T. CHERIYAN, AGED 49 S/O. THOMAS, PANTHAPPALLIL, ANICAD AKALAKUNNAM. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL RESPONDENTS/ACCUSED: ------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MATHEW, S/O. CHACKO, AGED 47, PANACHERIL HOUSE, EDAKKUNNAM KANJIRAPPALLY R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON 15/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1631 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No.451 of 2000 on the file of the Judicial First Class Magistrate, Kanjirapally. The second 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 complainant gave Rs.50,000/- to the accused as a loan and the accused issued a cheque for Rs.50,000/- to the complainant towards the discharge of the said amount. The said cheque, when presented, was dishonoured due to insufficiency of funds in the account of the accused. Even after issuing a lawyer notice intimating the dishonour of the cheque, the accused did not pay any amount. Hence the complaint. Crl.A. No. 1631 of 2003 2 3. In the Magistrate Court, on the side of the complainant, Pws.1 and 2 were examined and Exts.P1 to P10 were marked. No evidence was adduced from the defence side. The learned Magistrate, on considering the evidence, found that the accused could rebut the presumption under Section 139 of the N.I. Act and the accused was acquitted under Section 255(1) Cr.P.C. Against that judgment the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the second respondent. 5. The learned counsel for the appellant submitted that the court below failed to appreciate the effect of the presumption under Sections 118 and 139 of the N.I. Act and that presumption was not rebutted by the accused by adducing evidence or by bringing out any material from the cross examination of PW1. The learned counsel for the appellant submitted that since the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act, Crl.A. No. 1631 of 2003 3 the learned Magistrate is not justified in acquitting the accused. The learned counsel for the second respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., his case is that he has no money transaction with the complainant. 7. The complainant was examined as PW1. He deposed that the accused borrowed Rs.50,000/- from him and when he demanded back that amount the accused issued Ext.P1 cheque for that amount dt.12.2.2000. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Exts.P2 series are the dishonour memos. PW1 sent lawyer notice to the accused intimating the dishonour of the cheque and demanding the amount. Ext.P4 is the copy of the lawyer notice and Ext.P3 is the postal receipt. PW1 deposed that the accused purposefully evaded service of notice. Ext.P5 is the returned notice. Crl.A. No. 1631 of 2003 4 PW1 deposed that inspite of the lawyer notice the accused did not repay any amount. 8. PW2 is the Postman of Edakkunnam Post Office. He deposed that he gave intimation with regard to Ext.P5 registered notice to the accused, but he did not accept it and the same was returned with the endorsement 'unclaimed'. The testimony of PW2 shows that the accused purposefully evaded service of notice and therefore it can be presumed that there was sufficient notice as contemplated under the proviso (b) to Section 138 of the N.I. Act. 9. In cross examination, PW1 admitted that he had acquaintance with the accused for the last seven years and that the accused was a broker for the purchase of 15 acres of property by his brother-in-law. PW1 deposed that he sold the rubber trees standing in that property and the accused was the broker to that transaction also. PW1 further deposed that he paid Rs.50,000/- as loan to the accused after getting the amount by selling the timber. In cross examination the accused did Crl.A. No. 1631 of 2003 5 not challenge the financial ability of the complainant to pay that amount to the accused. The accused has not gone to the witness box to substantiate the defence case. On appreciating the testimony of PW1 in the light of the facts and circumstances of the case, I find no reason to doubt the genuineness of the case of the complainant. 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 accused has not adduced any evidence 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 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. 11. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a Crl.A. No. 1631 of 2003 6 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.50,000/- would meet the ends of justice. 12. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 451 of 2000 on the file of the J.F.C.M. Court, Kanjirapally 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.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 that effect before the court below in case of Crl.A. No. 1631 of 2003 7 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