IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 CRL.A.No. 878 of 2002() ----------------------------------- ST.117/1997 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... APPELLANT(S): PETITIONER ------------------------ K.M.JOSE S/O. K.M.MATHEW, KUNNUMPURATH HOUSE, PAYYANAD P.O., MANJERI. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): RESPONDENTS -------------------------- 1. P.RAVEENDRAN @ SUNDARAN, S/O. GOVINDAN, PALLIKUTH HOUSE, PAYYANAD P.O., MANJERI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.MR.K.M.SATHYANATHA MENON R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 878 OF 2002 = = = = = = = = = = = = = = = Dated this the 19th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the learned Chief Judicial Magistrate, Manjeri in S.T.117/97. It was a case u/s 138 of theNegotiable Instruments Act. The case of the complainant is that the accused had borrowed a sum of Rs.60,000/- on 3.5.96 and towards the discharge of the liability had issued a cheque on 20.7.1996 which when presented for encashment returned with insufficiency of funds. Thereafter the complainant had issued a notice to which the accused has sent a reply raising false contentions. Since the amount is not paid an action u/s 138 of the Negotiable Instruments Act is launched. 2. The defence appears to be that the accused had joined a kuri conducted by the complainant and had bid the kuri in auction and at the time of receipt of the amount as per the demand had given a cheque and signed in a stamp paper. According to the accused though the amount was paid the Crl.A. 878 OF 2002 -2- cheque and the stamp paper was not given back and thereafter the complainant has foisted a false case of this nature. The evidence in this matter consists of the oral testimonies of PW1 and DW1. It is also to be stated that there has been some delay in filing the appeal and some of the documents have been destroyed under the destruction rules and so I was helped by the counsel for both the sides to read the evidence with the certified copies of the depositions obtained from them from the Court. Learned counsel for the accused also made available for perusal a reply notice sent by him for perusal. 3. The points that arise for determination in the appeal are; (1) Whether the prosecution has succeeded in proving that the accused has committed an offence u/s 138 of the Negotiable Instruments Act. (2) If found guilty, what is the proper sentence? (3) Is there anything to interfere with the decision of the Court below? Crl.A. 878 OF 2002 -3- Points: 4. Heard the learned counsel for the appellant as well as the respondent. At the out set I may like to state the principles to be followed in a 138 of Negotiable Instruments Act case. It is the burden on the complainant to prove the debt due, that the cheque has been issued towards the discharge of the liability and that the cheque was returned for insufficiency of funds. The burden to prove the execution of the cheque when it is denied squarely rests upon the complainant. It has been also held in many cases that from the admission of the signature in the cheque by itself does not prove execution. It is also equally important that u/s.315 Cr.P.C. the accused may not be compelled to mount the box. When the evidence is made available by both the sides the Court can certainly look into both to find out the acceptability of the same. It is in this back ground I proceed to dispose of the matter. Crl.A. 878 OF 2002 -4- 5. The complainant as PW1 has mounted the box and gave evidence that the accused had borrowed a sum. He had also spoken about the execution of the cheque towards the discharge of the liability. He had been cross examined at length. He had denied that the accused had joined the kuri as set up by the accused and that Ext.D1 book is entered and initialled by him. He had also stated that there is no kuri transaction between the complainant and the accused. I had the opportunity to peruse Ext.D1. D1 contains various dates with a payment of Rs.125/- each everyday and an initial. It does not reflect anything about the kuri transaction and when it is specifically disputed by the complainant that the accused has not joined the kuri and Ext.D1 has not been issued by him then if that document is to be relied upon by the accused, the burden is on him to prove the document. How far he had proved that is to be seen from the evidence of DW1 who is said to be a conductor of the accused at that point of time. Even going by his evidence it can be seen that the kuri amount Crl.A. 878 OF 2002 -5- is used to be given by the conductor to the complainant. Admittedly there was more than three conductors for the same bus. As all of us know it is only by rotation that the bus is run. If really Rs.125/- is paid towards the chitty amount as contend by the accused there would be some entry in some document to establish the same. But nothing is forthcoming. Therefore the mere recitals and evidence of DW1 is not sufficient to prove Ext.D1. Then it has also to be understood that there is a total topsy turvey by the accused when he was questioned u/s 313 Cr.P.C. In the cross examination of the complainant, a suggestion was to put whether a blank cheque has been given signed by him which is being misused. But it has to be stated that under 313 statement he would deny the writing and the signature in the cheque. So what is attempted to be established by cross examining PW1 and by cross examining DW1 is totally attempted to be taken away by the specific contention in 313 statement that he had not signed the cheque at all. So it is in this back ground the evidence is Crl.A. 878 OF 2002 -6- to be weighed and analysed. So the evidence of PW1 does not suffer from any serious infirmity. Except for so many suggestions put to him nothing concrete has turned out to establish that he is uttering false before Court. He has produced the cheque before Court and had presented it to the Bank for encashment. On the contra the materials supplied by the accused are inconsistent one and cannot connect with the evidence that he had joined a kuri and had given a blank cheque to him. So I find that the evidence of PWs.1 and 2 coupled with the documentary evidence establishes the case of the complainant and therefore the accused has to be found guilty and I do so. 6. Now turning to the question of sentence. If the accused is interested to pay the amount I do not want to send him to jail for a long time. It will be sufficient that an imprisonment till the raising of the Court with a fine of Rs.60,000/- u/S. 357(3) Cr.P.C. is imposed which on realization shall be disbursed to the complainant and in default Crl.A. 878 OF 2002 -7- of which he shall undergo simple imprisonment for a period of two months. He shall appear before the Court below to receive the sentence and for payment of compensation on 11.12.2009. The Crl.Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 878 OF 2002 -8- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 878 OF 2002 = = = = = = = = = = = J U D G M E N T 19th August, 2009