IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 CRL.A.No.1258 of 2003(C) ------------------------------ AGAINST ORDER IN CRL.L.P.196/2003 Dated 15/07/2003 CC.40/2000 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... APPELLANT: COMPLAINANT: --------------------------------- VIJAYAN, S/O. CHOYAPPA, ATHIYADIKKAM, KUTTIKOLE VILLAGE, KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENTS: ACCUSED & STATE: ----------------------------------------- 1. JOSHI MATHEW, S/O. MATHEW, ANJAN TYRES TRADING, PADUPPU, SANKARAMPADI P.O., CHENGALA VIA., KASARAGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.THAMBAN PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1258 of 2003 --------------------------- JUDGMENT The appellant is the complainant in C.C.No. 40/00 on the file of the Chief Judicial Magistrate's Court, Kasargode. He filed the said complaint complaining of commission by the first respondent of an offence punishable under section 138 of the Negotiable Instruments Act. The allegation is that the first respondent borrowed an amount of Rs.80,000/- from him and on demand for return of the amount, he issued Exhibit P1 cheque dated 14.12.1999 in discharge of the said debt, but, when presented for collection, the cheque was dishonoured by the drawee bank assigning the reason “insufficient funds”. Despite issuance of Exhibit P4 notice intimating the dishonour of the cheque and demanding payment of the amounts covered by the cheque, the first respondent has not paid up the amounts nor has he issued any reply to the said otice, though the notice was received by him under CRA 1258/03 2 Exhibit P5 postal acknowledgment card and thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 2. On appearance of the first respondent/ accused in the court below, the learned Magistrate read over the particulars of the offence and questioned him and thereupon he pleaded not guilty. Consequently, a trial of the case was conducted. On the side of the complainant, he tendered evidence as PW1 and got marked Exhibits P1 to P5. On the defence side, the first respondent tendered evidence as DW1 and got marked Exhibit D1. The learned Chief Judicial Magistrate considered the case in the light of the evidence so adduced and acquitted the accused under Section 255(1) Cr.P.C., in view of his finding that the appellant failed to establish that Exhibit P1 is the cheque issued in discharge of any legally enforceable debt or other liability. Hence, this appeal by the aggrieved complainant. CRA 1258/03 3 3. It is contended before me by the learned counsel for the appellant that dismissal of the complaint by the court below was improper inasmuch as no reply was given by the first respondent to Exhibit P4 notice and he had no explanation even as to why no reply was given and that any ordinary prudent man would have immediately reacted, issuing a reply refuting the claim, if at all no amount had been borrowed and no cheque was issued to the appellant and that it goes a long way to prove the case of the appellant. It is his further contention that when proper formal proof is adduced by the appellant in proof of Exhibit P1 cheque and of its dishonour for insufficiency of funds by tendering evidence and when all other statutory formalities stand complied with, his case stands established also in view of the presumption available in his favour under Section 139 of the Negotiable Instruments Act and that the burden to rebut the said presumption is on the first respondent/ CRA 1258/03 4 accused. According to the counsel, the first respondent has not been able to rebut the presumption in favour of the appellant under Section 139 of the Negotiable Instruments Act. 4. The learned counsel for the first respondent submitted that the first respondent has no case that dishonour of the cheque was not for reason of insufficiency of funds in his account or that all the statutory formalities required for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act do not stand satisfied in the instant case. But, according to him, PW1 has admitted in cross-examination that the cheque had been filled up and brought by the first respondent and was being signed in his presence, but that, he was unable to say as to whether the writing was in ink or was it type written and that belies the case of the appellant, as Exhibit P1, in fact, is seen type written. CRA 1258/03 5 5. It is worthy to note that PW1 stated only that the cheque had been filled up and only the signing was in his presence. No question was put to him as to whether the cheque was one that was filled up in ink or was type written. It is after PW1 had deposed that it was signed in his presence that he was asked as to with which pen was it written, to which, he has answered that he does not remember, but, that was written in ink. It could be that PW1 meant that signature was affixed in ink, though he does not know with which pen was the first respondent signing in the cheque. Nothing prevented the first respondent while cross- examining PW1 to ask him as to whether the cheque delivered over to him was type written or was being written in hand using ink. Strangely enough, such a question was avoided. Even assuming that the appellant, the holder as well as the payee under the cheque, failed to mention that the cheque was type written, that does not enable any inference CRA 1258/03 6 that the cheque is not one which was issued to him, as the cheque was dated 14.12.1999 and he was tendering evidence on 6.2.2003, after more than three years. For reason of the appellant's memory failing as to whether the cheque was filled up in ink or whether it was type written after more than three years, it cannot be held that the cheque is not one issued to him. 6. The next contention that was advanced before me by the learned counsel for the first respondent is that the account was opened by the appellant only on 14.12.1999, the date of presentation of the cheque and for opening the said account, the appellant was being introduced by one N.T.Kunhiraman, who, as per the contention of the first respondent, is a vehicle broker, to whom was Exhibit P1 signed blank cheque issued by way of security. PW1 has admitted that Sri.N.T.Kunhiraman is a person known to him, but he was not the person who introduced him to the bank. The fact that the CRA 1258/03 7 appellant, as PW1, denied that Sri.N.T.Kunhiraman was the person who introduced him to the bank does not belie the case of the appellant. No one may remember as to who was the person who introduced him to the bank while opening an account and that has no significance at all while considering the truth of the case alleged in the complaint, as there are other overwhelming telling circumstances against the defence contentions. Kunhiraman aforesaid, who, according to the case of the first respondent, is a material witness to the cause, has not been cited and examined by the defence. The argument that he is likely to be a hostile witness is no ground for non examination of a material witness to a cause. According to the first respondent, the two cheque leaves entrusted with Sri.N.T.Kunhiraman by way of security, had not been returned even though he has discharged the liability due to him, as Kunhiraman stated that the cheque leaves are missing. The said case is set up CRA 1258/03 8 to buttress the contention that it is the said cheque leaf that was passed on to the appellant, so as to cause the complaint being filed against the first respondent/accused. If at all Kunhiraman did not return the cheque leaves while discharging the debt stating that the cheques are missing, the first respondent could have obtained a receipt in discharge of the debt, wherein the fact of missing of the cheque also could have been got endorsed from the said Kunhiraman. That also had not been done. The defence set up by mentioning the name of N.T.Kunhiraman, who is practically screened from court by not citing him as a witness is only an attempt on the part of the first respondent to see if he could avert the liability due under Exhibit P1 cheque to the appellant. The view of the court below that Kunhiraman was highly interested in the matter of obtaining amounts from the first respondent by encashing Exhibit P1 cheque for the sole reason that he was the one who introduced the CRA 1258/03 9 appellant to the bank to open an account is not justified when the said Kunhiraman is not cited and examined by the first respondent as a witness, despite he being a material witness on the contentions set up by him. The finding of the court below that the appellant has not established that Exhibit P1 cheque is one issued to him by the first respondent in discharge of debt or other liability due to him, cannot be supported, in the circumstances, of the case discussed above. The above aspect coupled with the fact that the first respondent, who accepted the original of Exhibit P4 notice, informing him of the dishonour of Exhibit P1 cheque and calling upon him to make payment of the amounts covered by the cheque, establishes the case of the appellant and improbabilises the defence set up by the first respondent. Hence, in reversal of the finding of the court below, I hold that Exhibit P1 cheque is one issued by the first respondent to the appellant in discharge of debt CRA 1258/03 10 due to him and that consequent on dishonour of the said cheque for reason of insufficiency of funds in the account of the first respondent to satisfy the said cheque, he having not paid the amounts due under the cheque despite demand made in that behalf either within the statutory period or ever thereafter, the first respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act. In the result, reversing the order of acquittal passed by the court below, I find the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convict him thereunder and sentence him to undergo simple imprisonment for a term of one year and to pay the cheque amount of Rs.80,000/- as compensation to the appellant. 2nd January, 2008 (K.P.Balachandran, Judge) tkv