IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRL.A.No. 233 of 2001() ----------------------- CC.250/1993 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT/COMPLAINANT: ----------------- M.D.SEBASTIAN, MURINGAYIL VEEDU, AYARKUNNAM KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.JOHN VARGHESE RESPONDENTS/ACCUSED & STATE: ------------- 1. V.C.SIMON, VETTUKATTIL VEEDU, VETTILAPARA KARA, AREEKKODU DESOM, ERANADU TALUK, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR, P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J. ---------------------------------- Crl.Appeal.No. 233 OF 2001 ------------------------------------ Dated this the 3rd day of June, 2008 J U D G M E N T ~~~~~~~~~~~~ This appeal, which is, at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instrument Act, is directed against the order of acquittal passed by the trial court. By the impugned judgment, the trial court found respondent No.1/accused not guilty on the ground that the appellant/complainant had failed to prove that Ext.P1 cheque was supported by consideration. 2. The case of the complainant before the court below was that the accused had borrowed a sum of Rs.50,000/- on 8.4.1993 with a promise to repay it soon. The accused issued Ext.P1 cheque dated 30.4.1993 in discharge of the said debt. But, when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Statutory demand notice issued by the complainant did not evoke any response. Hence the complaint. Crl.Appeal.No.233/2001 2 3. The complainant was examined as PW1 and the Manager of the bank was examined as PW2. Exts.P1 to P7 were also marked on the side of the complainant. Ext.D1 and D2 were marked on the side of the accused, though there was no oral evidence. 4. The defence set up by the accused as revealed from the questions put to PW1 in the course of his cross examination and also from the statement made by him when questioned under Section 313 of the Code of Criminal Procedure, was that he had had no money transaction with the complainant. He had not borrowed any money as alleged in the complaint. According to the accused, he had opened a bank account in his name in the South Indian Bank at Ayarkunnam as requested by the complainant. In fact, the complainant had taken him to the bank and got the signature of the accused in several papers for the purpose of opening the account. After doing so, the complainant had requested the accused to hand over a few blank signed cheque leaves to him which the accused had obliged. Accused contended that one of the said signed blank cheque leaves was misused by the complainant for the purpose of launching the present prosecution. Crl.Appeal.No.233/2001 3 5. The learned Magistrate, while dealing with the oral and documentary evidence on record, noticed that the complainant had admittedly filed another complaint alleging the offence punishable under Section 138 of the Act. The certified copy of the deposition of the complainant in the said case (C.C.No.172/1997) was marked as Ext.D1. The copy of the judgment was also produced in the case by the accused which was marked as Ext.D2. The learned Magistrate took great pains to consider the case of the complainant in the earlier case (C.C.No.172/1997) rather too elaborately. It is pertinent to note that the learned Magistrate had observed that the case of the accused in this case that he had happened to hand over a few blank signed cheques to the complainant immediately after the account was opened at Ayakunnam branch of the bank was by itself unbelievable and improbable. But, nevertheless, the learned Magistrate proceeded to hold that there were apparent inconsistencies and contradictions in the evidence of PW1 when compared to his deposition in the earlier case. It is incomprehensible as to why the learned Magistrate should have taken such pains to venture upon such an unnecessary exercise. Crl.Appeal.No.233/2001 4 6. The learned Magistrate ought to have noticed that the accused had admitted his signature in Ext.P1 cheque. Further, the presumption under Section 118 was available in favour of the complainant. The accused had not discharged the burden cast upon him, in any manner, known to law. At the same time, the complainant had satisfactorily established that he had received Ext.P1 cheque in discharge of a legally enforceable debt. 7. In this context, it may be noticed that the specific case of the complainant was that he had paid the amount of Rs.50,000/- to the accused by way of a cheque. This contention was not controverted by the accused. More over, it is brought to my notice that the complainant had, in fact, filed an application before the trial court with a prayer to call for the relevant records from the bank to substantiate the above contention. But the said application was dismissed by the learned Magistrate on the ground that it was belated. 8. Having regard to the totality of the facts and circumstances of the case, I have no hesitation to hold that the order of acquittal is bad in the eye of law. The order is totally Crl.Appeal.No.233/2001 5 illegal and unsustainable. Therefore, it is liable to be set aside. I do so. Respondent No.1/accused is accordingly found guilty under Section 138 of the Negotiable Instrument Act. However, in the peculiar facts and circumstances of the case, I am of the view that the case is to be remitted to the trial court with a direction to pass appropriate sentence on the accused. 9. Therefore, the appeal is allowed and the case is remitted to the court below with a direction to pass appropriate sentence on the accused after affording an opportunity to be heard, the learned Magistrate shall dispose of the case, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The appellant shall appear before the court below on 15th September, 2008. (A.K.BASHEER, JUDGE) ps Crl.Appeal.No.233/2001 6 A.K.BASHEER, J. =================== CRL.A.NO.233 OF 2001A =================== JUDGMENT DATED 3RD JUNE 2008 ==============================