IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRL.A.No. 797 of 2003() ------------------------------------ ST.1536/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S)/ COMPLAINANT ---------------------------------------------- VARGHESE, S/O.P.A.CHACKO, POZHATHIPARAMBIL HOUSE, IRINJALAKUDA BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S)/ ACCUSED AND STATE ------------------------------------------------------------ 1. V.V.JOSE, S/O.VAREED, VADAKKEPEEDIKA HOUSE, ALOOR, IRINJALAKUDA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JOMMY THARIAN R2 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.797 of 2003 ---------------------------------------------------- Dated this the 4th day of August, 2011 Judgment This appeal is filed by the complainant, who filed complaint against the accused/respondent alleging offence under Section 138 of the N.I.Act. The accused/respondent pleaded not guilty. The complainant was examined as P.W.1 and Exts.P1 to P6 were marked. The accused got himself examined as D.W.1. 2. The learned Magistrate acquitted the accused under Section 255(1) Cr.P.C. finding that in the notice sent by the complainant, no specific demand was made by him demanding the amount. It was further found that there is no evidence to show that a sum of Rs.75,000/- was due from the accused to the complainant. 3. The complainant in this appeal contends that the learned Magistrate went wrong in holding that the execution of Ext.P1 was not proved and that the amount mentioned in Ext.P1, namely, Rs.75,000/- was actually due from the accused to the complainant. The learned counsel for the complainant/appellant would submit that it was the specific case set up even in Ext.P4, Crl.A.797/03 2 the notice sent as required under the proviso (b) to Section 138 of the N.I.Act that Ext.P1 cheque was signed and issued by the accused to the complainant in discharge of the debt/liability of Rs.75,000/-. The fact that when Ext.P1 was presented for encashment, it was dishonoured due to insufficiency of fund and that on receipt of the dishonour memo Ext.P6 notice was sent within the time prescribed is not in serious dispute. It is further pointed out by the learned counsel for the appellant that in fact the accused sent a reply as evidenced by Ext.P4, though raising false contentions. It is worthwhile to note that the complainant as P.W.1 testified before the court that Ext.P1 was signed and issued by the accused. When the accused was examined as D.W.1, he also admitted that Ext.P1 was signed by him and it was handed over to P.W.1, the complainant. The only contention that was raised by the accused was that it was not filled up by him. Except the interested oral version of the accused that when Ext.P1 was handed over to the complainant, he did not fill it up fully, there is no other circumstance to hold that what was handed over by D.W.1 to P.W.1 was a blank signed cheque leaf. It is also pertinent to note that even according to D.W.1, he had Crl.A.797/03 3 in fact received the amount when Ext.P1 cheque was issued by him. In fact it was admitted by D.W.1 that Ext.P1 was issued by him to discharge the amount borrowed by him. But he wanted the court to believe that the amount which was due from him to the complainant was only Rs.13,500/-. The presumption under Sections 118 and 139 of the N.I.Act would certainly come to the rescue of the complainant in such circumstances. It is not a case where there was no transaction at all as contended by the complainant. On the other hand, it is a case where the amount was due from him to the complainant and it was to discharge that debt or liability Ext.P1 was signed and issued by him. The finding entered by the court below is to the effect that since it was not proved that other writings in Ext.P1 were in the handwriting of the accused but those handwritings are of the complainant, the transaction as averred by the complainant could not be proved. The law does not require that the drawer himself should fill up the cheque. If there is evidence to show that it was filled up as instructed by the drawer, either by the payee or by somebody else and if that evidence infuses confidence, that would be sufficient to hold that there was due execution of the cheque. Crl.A.797/03 4 Similarly, the finding entered by the learned Magistrate that “there is no legal proof to find out a demand for payment as is contemplated by proviso (b) to Section 138” also is incorrect and unsustainable since in Ext.P6 specific mention was made with regard to all necessary particulars. There was no case for the accused that no notice as contemplated under the proviso (b) to Section 138 of the N.I.Act was not issued. When Ext.P6 was produced to which admittedly a reply (Ext.P4) was sent by the accused, it is indiscernible how the learned Magistrate could enter such a finding. 4. It seems, the learned Magistrate has overlooked the evidence given by P.W.1. P.W.1 was recalled and examined on 12.3.2001 and Ext.P6, the copy of the Lawyer notice sent by him on 19.2.1998 was marked. Though questions were put regarding the correctness of the contents and also as to the non-mention of the date when money was lent by him to the accused, there was no case for the accused that no such notice was sent to him. There could be no such case since Ext.P4 reply was sent by the accused to Ext.P6 notice but still the learned Magistrate says that no demand for money was made by the complainant. Again at Crl.A.797/03 5 another place the learned Magistrate says that Ext.P6 was not proved. It is actually a travesty of truth. It is not known whether the learned Magistrate is of the view that the Lawyer who sent the notice himself should be examined to prove the Lawyer notice which was in fact proved and marked through the complainant. 5. It is true that in the complaint and in Ext.P6 it was not stated when exactly the amount was lent by P.W.1 to D.W.1. But it was stated by P.W.1 that though request was made on an earlier date, the money was lent by him to D.W.1 on 1.1.1998. It was further stated by him that the accused in his presence brought the filled up cheque and it was signed by the accused in his presence from his house (house of P.W.1). Though an attempt was made by the defence to contend that there is age difference between the signature and the remaining writings seen on the cheque, on a perusal of Ext.P1 by using magnifying glass, it could not be found that there is any difference. Not only that it appears that the accused who signed the cheque himself had filled up the cheque. It was admitted by accused (D.W.1) that he had studied upto SSLC and he knows to read and write English. The evidence given by P.W.1 that the cheque which was already written up was Crl.A.797/03 6 signed by the accused in his presence could not be seriously assailed by the defence. Hence, it can be held that the execution of Ext.P1 could be successfully proved by the complainant. 6. There is yet another fallacy in the case advanced by the accused. His case in Ext.P4 reply notice was to the effect that he had requested for a sum of Rs.15,000/- and after deducting Rs.1500/- as interest in advance, P.W.1 paid him only Rs.13,500/- and that he had subsequently paid a total sum of Rs.20,000/-. His further case is that contrary to the agreed terms, the complainant demanded a further sum of Rs.5000/- and so there was exchange of words or altercations. But when the accused was examined as D.W.1 even in chief examination (see the last sentence in chief examination) his definite case was that a sum of Rs.13500/- was still due from him as on the date when he was examined in court. During cross-examination also he maintained his version that Rs.13500/- is due from him to the complainant. It was so stated by him in order to probablise his case that he had not borrowed Rs.75,000/- nor is he liable to pay Rs.75,000/- to P.W.1. But the contradictory stand taken by him in Ext.P4 reply notice and in the evidence given by him would Crl.A.797/03 7 unfold the unreliability of the case advanced by him. 7. In short, the evidence given by P.W.1 that Ext.P1 was executed and given to him by the accused is found to be true and acceptable. Going by the evidence given by D.W.1 himself the money was due from him to the complainant though he says that the amount borrowed by him was only Rs.13,500/-. But the evidence given by D.W.1 cannot be accepted since he has no consistent case as to the amount borrowed or alleged to have been repaid by him. When execution has been duly proved and since the accused himself admitted that he had obtained some money from the complainant, the complainant can very well bank upon the presumption under Sections 118 and 139 of the N.I.Act. So much so, I hold that Ext.P1 was executed by the accused in discharge of a legally enforceable debt. All statutory formalities are seen complied with. Admittedly, the accused did not pay the amount after receipt of the notice. Hence, he is proved to have committed the offence under Section 138 of the N.I.Act. The finding to the contrary entered by the court below is set aside. However, considering all the aspects, I find that imprisonment till the rising of the court and direction to pay Rs.60,000/- as Crl.A.797/03 8 compensation will meet the ends of justice. 8. In the result, this Criminal Appeal is allowed. The accused/respondent is found guilty of the offence under Section 138 of the N.I.Act and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs.60,000/- as compensation to P.W.1 (the complainant) and in default, the accused/respondent will undergo simple imprisonment for one month. The accused will surrender before the Judicial First Class Magistrate Court, Irinjalakuda within two months from this date to receive the sentence and to pay to the complainant or to deposit the amount of compensation of Rs.60,000/-. If the accused/respondent fails to do so, the learned Magistrate will execute the sentence without delay. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.797/03 9 Crl.A.797/03 10