IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 CRL.A.No. 1239 of 2003(M) AGAINST THE JUDGEMENT/ORDER IN CRLP.56/2003 Dated 06/06/2003 CC.720/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... APPELLANT: COMPLAINANT MOHANAN S/O. KOCHITTAMAN, KUNAPPILLY HOUSE, KUNDOOR, THIRUMUKKULAM VILLAGE. BY ADV. SRI.V.N.MOHANADASAN RESPONDENTS: ACCUSED 1. JABBAR S/O. ABDULLA, KUTTIMAKKAL HOUSE, ERAVATHUR, KOCHUKADAVU P.O. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.O.D.SIVADAS PUBLIC PROSECUTOR SRCI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/2/08, THE COURT ON 15/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1239 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The court below, after examining the oral and documentary evidence adduced by the parties, held that the complainant had not established that the accused had issued Ext.P1 cheque in discharge of a debt or liability. Accordingly, the respondent No.1/accused was acquitted. This appeal is directed against the above judgment of acquittal. 2. The case of the complainant before the trial court was that the accused had borrowed a sum of Rs.50,000/- from him in January 2001. The accused had issued Ext.P1 cheque dated March 18, 2001 for Rs.50,000/- in discharge of the above liability. However, when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory notice was issued demanding payment, the accused had failed to discharge the debt. The Crl.A.No.1239 OF 2003 :: 2 :: statutory notice was returned unclaimed. Hence the complaint. 3. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. DW1 gave evidence on the side of the accused. 4. The learned Magistrate, after evaluating the oral and documentary evidence, found that the complainant had not established that the accused owed the amount mentioned in Ext.P1 cheque to the complainant. In other words, it was held that there was no legally dischargeable debt or liability. 5. The defence set up by the accused appeared to be that he had not borrowed Rs.50,000/- from the complainant as alleged by him. But he had borrowed a sum of Rs.17,000/- in the year 1997. At that time, a blank signed cheque was handed over to the complainant. According to the accused, the entire liability was discharged by him thereafter. He had paid Rs.4,000/- initially. Thereafter, he had paid monthly instalments of Rs.720 for 24 months. Still furhter, he had paid monthly instalments of Rs.520 for 24 months. Thus, according to DW1, who was examined on the side of the accused, the entire liability of Crl.A.No.1239 OF 2003 :: 3 :: Rs.17,000/- with interest thereon was discharged by the accused. 6. In this context, it may be noticed that the accused had admitted his signature in Ext.P1 cheque. His case was that the amount of Rs.50,000/- shown in the cheque was not correct and that he had never borrowed such a huge sum. 7. DW1 who was none other than the brother-in-law of the accused had advanced a case that only Rs.17,000/- was borrowed by the accused from the complainant sometime in 1997. If in fact the accused had discharged the liability by making payment in monthly instalments of Rs.720 and 520/- each for several months within a span of four years, necessarily there should have been some contemporaneous documents to show such payment. But no documents were produced. The evidence of DW1 does not indicate that the monthly instalments were remitted. In cross examination, DW1 had clearly stated that he did not remember the date when the accused had borrowed Rs.17,000/-. Similarly, he did not remember the date when it was repaid. He also admitted that there was no document to show that the accused had repaid the amount of Rs.17,000/- to the complainant with Crl.A.No.1239 OF 2003 :: 4 :: interest thereon. He further went on to say that when the accused asked for return of the blank signed cheque, complainant had told that it would be returned. More significantly, DW1 admitted that he could not say whether the accused had borrowed any money from the complainant in the year 2001. 8. On the contrary, PW1 had categorically stated that the accused had borrowed a sum of Rs.50,000/- in January, 2001. He asserted that Ext.P1 was issued by the accused in discharge of the said liability. Obviously, the presumption under Section 118 of the Act is available with regard to consideration. Similarly, the accused had not discharged the burden cast on him under Section 139 of the Act. The burden was heavier on the accused, since he had specifically contended that he had borrowed some money from the complainant and in fact had discharged the said liability. The evidence of DW1 did not in any way advance the case of the accused. 9. Having heard learned counsel for the parties and having perused the materials available on record, I have no hesitation to Crl.A.No.1239 OF 2003 :: 5 :: hold that the court below was not justified in acquitting the accused. The finding entered by the learned Magistrate is totally unsustainable. Therefore, the order of acquittal is set aside. The accused is found guilty. He is convicted and sentenced to undergo simple imprisonment for one year. Appellant will be entitled to set off the period already undergone by him. The appeal is allowed. (A.K.BASHEER, JUDGE) jes Crl.A.No.1239 OF 2003 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1239 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 15th Feb. 2008