IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 CRL.A.No. 623 of 2003() ---------------------------------- CC.582/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT(S): COMPLAINANT ------------------------- A.L.KANNAN, AGED 34 YEARS, S/O.LAKSHMANA ACHARI, AMBADIYIL HOUSE, VAZHAPPALLY P.O., CHANGANACHERRY. BY ADV. MR.BABY ISSAC ILLICKAL RESPONDENT(S): ACCUSED / STATE ------------------------------ 1. SUBI BHASKAR, S/O.BHASKAR, AGED 33 YEARS, SUBI VILASAM, KARUKACHAL P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.LIJI.J.VADAKEDOM FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, ALONG WITH CRA NO. 2143 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NOS.623 OF 2003 & 2143 OF 2007 ------------------------------ Dated this the 29th day of June, 2009 JUDGMENT Both these appeals arise from judgments rendered in C.C.Nos.582 and 583 of 2000 of the Judicial First Class Magistrate, Kanjirappally in Section 138 matters. It is the case of the complainant that the accused had borrowed a sum of Rs.75,000/-, and towards the discharge of the liability, had issued two cheques for Rs.40,000/= and Rs.35,000/= to be encashed on different dates and when those cheques were presented for encashment, it was returned with the endorsement of insufficiency of funds. Thereafter notice was issued and a false reply was sent and prosecution was launched. 2. In the trial court in C.C.No.583/2000, PWs 1 and 2 and Dws 1 and 2 were examined, Exts.P1 to P12 and Ext.D1 were marked. In C.C.No.582/2000, PWs 1 and 2 and Dws 1 and 2 were examined, Exts.P1 to P11 and Exts.D1 to D3 were marked. The evidence in these cases have got a common background and except for the two different dates of the cheque, the case of the 2 parties in both the cases rests upon the same facts. So, in order to evaluate the case, it is desirable to dispose of these appeals together. 3. In both the cases, the defence is to the effect that the accused was doing the work of an accountant on part time basis and for the purpose of his sister's marriage, he had taken gold from the shop of the complainant, where he was employed, and after paying the amount, there was a balance outstanding of Rs.51,000/-. The understanding between the complainant and the accused was that as he was working and was having a remuneration of Rs.2,000/=, he would work without remuneration, so that the liability can be wiped off. Thereafter there was a difference of opinion among the two with respect to the interest and on account of the incordial atmosphere, the accused left the job. On the contra, the case of the complainant is regarding the borrowal of Rs.75,000/- and issuance of the cheque towards the discharge of the liability. The evidence in this matter is that of the complainant and one of his witnesses and that of the accused and one of his witnesses. After reading the evidence of DW2, I have got a definite feeling that he is more royal than he king. This observation is made only after reading the same. Now, 3 the principles to be followed in Section 138 cases are that when the evidence is adduced by the prosecution as well as the defence, the courts are competent to look into the evidence of the defence as well, in order to arrive at the probability of the case. But, it is to be remembered that an accused cannot be blamed for not adducing any evidence or the absence of any evidence tendered by him cannot be commended upon by the court under Section 315 of the Cr.P.C. With these principles in mind, let me to analyse the case. After going through the evidence of PW1, I find inconsistency here and there. According to PW1, the amount was borrowed on August, 1999 and the cheques were issued on 25.12.1999 with the date 30.6.2000 for Rs.40,000/= and 30.5.2000 for Rs. 35,000/=. According to the complainant, the amount was given from his shop at Kanjirappallly. In the cross examination, he would admit that at the time of payment of the amount on 24.8.1999, the accused had written in a fifty rupees stamp paper and a revenue stamp for the receipt of Rs.75,000/-. According to the complainant, when the amount was not paid, he had filed a complaint before the police and both the accused and the complainant went before the police authorities and Ext.D3 is the outcome of that. Ext.D3 is the 4 register of petitions maintained by the Kanjirappally Police Station and the complaint filed by the complainant is numbered as 1024/1999 and the subject is with respect to the non-return of the account book and using abusive language. The complaint was filed on 18.12.1999. There is endorsement on 25.12.1999 that both the parties were present and all the account books and other documents in the possession of the accused were handed over to the complainant and there was a settlement with respect to the amount due and that the accused had to give two cheques towards the discharge of the liability within a time frame of six months. It is also seen that both the accused and the complainant had signed in Ext.D3. 4. The learned counsel for the respondent very strongly contends before me that the cheque was happened to be issued only on account of the coercion and threat used by the police officials for the reason that the complainant was the owner of a jewellery and the accused was only an accountant in the firm and the complainant had greater influence on the police officials. It is true, regarding the monetary transactions, generally the police is not expected to handle the same. But, when so many points are interlinked and the parties settle the matter, one cannot 5 blame the police authorities for making the settlement. Suppose the cheques had been issued under duress and threat and when it is issued on 24.12.1999 or 25.12.1999 whether any person, who does not owe any amount, keep quite till one receives the notice regarding prosecution under Section 138. In these type of matters, the ordinary human course of conduct has to be borne in mind by the court and there must be an attempt to have a realistic approach instead of relying upon absolutely technical formalities. When that is the situation, the learned counsel for the respondent would submit before me that being persons of a higher profile, the accused was afraid to complain and that is why he did not do anything against the forcible receipt of the cheque by the complainant. In this regard, the learned counsel had drawn my attention to the evidence of PW1 wherein Pw1 made some inconsistent statement with respect to the receipt of the cheque. What is recorded in Ext.D3 is that cheques had been issued and the matter has been settled. It is not recorded therein that it was at the police station the cheques were handed over. PW1 would depose that it was from the jewellery the cheques were given. Whatever it may be, it has to be remembered that there is an admission made by the accused before the police regarding the 6 handing over of the cheque. Whether it is one day before or prior is not a matter that has to be considered as a vital thing to disprove the prosecution. The complainant has categorically asserted before the court in cross examination that the cheque was not received from the police station. Now referring to the evidence of PW2, he is an employee of PW1. He had deposed before the court that he was available as salesman in the shop when the accused borrowed a sum of Rs.75,000/=. He had been cross examined. He does not speak anything about the gold business relating to the marriage of the sister of the accused. At least there is some evidence which connect the borrowal of the amount between the complainant and the accused. Dw1 is one Sreenivas who is the Sub Inspector of Police. He had produced Ext.D3 and had spoken about the settlement of the matter and the contents in Ext.D3. His evidence is only that he was not an officer concerned at the time of making the relevant entry in Ext.D3. But petition register is a document which is kept in the ordinary course of business in the police station and any entry therein has got some value for the reasons under Section 114 of the Evidence Act. DW2 is one Biju. He knows the accused for the last more than 12 years. He had gone to the police 7 station. He had submitted that he had seen the accused signing the cheque and writing the cheque. But, according to him, it is under duress or pressure exerted by the police officials. It can be seen that this man has got some special interest and immediately on receipt of some information, he had gone to the police station to help the accused. It has to be remembered that what DWs1 and 2 had spoken is true, then certainly it has to be stated that they would have never keep quite under ordinary circumstance. The complainant in this case is not an ordinary rustic illiterate person. He was an accountant writing accounts in various shops in Kanjirapply. So, when a person is taken to the police station and exerted pressure to execute some documents, one has to take immediate action at least by sending a notice So, I have tried to analyse the evidence of PWs 1 and 2 and DWs1 and 2. I have weighed the preponderance of probabilities and I am strongly of the view that except for some doubt is attempted to be generated in the mind of the court, the materials supplied by the defence is not sufficient to do away with the case of the prosecution. Ext.D3 coupled with the evidence of PWs1 and 2 would show that the case spoken to by PW1 is more probable and acceptable and I do not find that the evidence 8 made available by the defence has got intrinsic reliability. So, I disagree with the finding of the learned Judge. I hold that the cheques in both the cases are executed by the accused towards the discharge of the liability and that when it was presented for encashment had returned with insufficiency of funds and in spite of the statutory notice, the amount was not paid and thereby they had succeeded in proving the necessary ingredients to constitute an offence under Section 138 of the N.I.Act. Therefore, I find that the accused is guilty in both the cases, C.C.Nos.582 and 583 of 2000 of the Judicial Magistrate of First Class, Kanjirappally and I also set aside the order of acquittal passed in both the cases by the trial judge. The accused is found guilty and is convicted there under. 5. Now coming to the question of sentence. There had been formal relationship of employer and employee between the complainant and the accused. Under the amended provisions of the N. I.Act, any court of competent jurisdiction is entitled to levy double the cheque amount as fine. In a case of this nature, the cheque amount can be ordered to be paid as fine thereby permitted the accused to avoid suffering the sentence of imprisonment under Section 138 of the N.I.Act. 9 6. Therefore, the criminal appeals are allowed and disposed of as follows: 1. The order of acquittal passed by the learned Magistrate in C.C.Nos.582 and 583 of 2000 are set aside. 2. The accused is found guilty under Section 138 of the N.I.Act and is convicted there under in both these cases. 3. The accused is sentenced to pay a fine of Rs.40,000/= in C.C.No.582/2000 and a sum of Rs.35,000/= in C.C.No.583/2000 and on payment of the said amount as fine, let it be disbursed to the complainant on proper application. In case of default of payment of fine, the accused is directed to undergo 6 weeks imprisonment in C.C.No.582/2000 and one month imprisonment in C.C.No.583/2000. If the fine amount is not paid on or before 30.9.2009, the lower court shall take steps to execute the sentence. M.N. KRISHNAN, JUDGE cl 10 M.N. KRISHNAN, J. --------------------------- CRL.A.NOS.623 OF 2003 & 2143 OF 2007 ------------------------------ 29th day of June, 2009 JUDGMENT 11