IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 CRL.A.No. 940 of 2002() ---------------------------------- ST.5375/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT(S): COMPLAINANT ------------------------- C.I.ACHARI W/O. ABRAHAM, CHEERAN HOUSE, PAZHANJI - 680 542. BY ADV.MRI.A.K.CHINNAN RESPONDENT(S): ACCUSED ---------------------- 1. P.SARASWATHI D/O. RAMAN NAIR, PHYSICAL EDUCATION TEACHER, N.S.S.HIGH SCHOOL MULLORKARA 680 583 THALAPPALLY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031. BY ADVS. MR.K.S.BABU FOR R1 MR.SREEKUMAR PUTHEZHATH BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.940 OF 2002 ------------------------------ Dated this the 28th day of May, 2009 JUDGMENT This appeal is preferred against the judgment in S.T.No.5375/1998 of the JFCM, Kunnamkulam. It is the case of the complainant that the accused had borrowed a sum of Rs.45,000/= and towards the discharge of the liability has issued a cheque which when presented for encashment was returned for want of sufficiency of funds. Thereafter statutory notice was issued and prosecution was launched. The defence case as it appears from cross examination and Section 313 questioning is to the effect that PW1's wife sister - Molly Cherian was a partner in one Wealth Finance from which she had borrowed Rs.20,000/= and had given Rs.19,000/= as blank cheque and that she had paid at the rate of Rs.2,000/= per month and discharged the liability. Making use of that cheque, a case is initiated. 2. The trial court examined Pw1 and Exts.P1 to P7 were marked. The court below acquitted the accused on the ground 2 CRL.A.NO.940/02 that the complainant had failed to prove the execution of the cheque and that such a cheque had been issued towards the discharge of the liability. It is challenging the correctness of the same, the complainant has come up in appeal. 3. The point that arises for determination is whether there is any ground to interfere with the decision rendered by the court below. (2). In the event of reversal, what is the quantum of punishment. 4. Point No.1: It is the definite case of the complainant that the accused had borrowed a sum of Rs.40,000/= and had issued Ext.P1 cheque towards the discharge of the liability. Pw1 is the only witness who had been examined by the court. PW1 had deposed before the court that the complainant is the mother of PW1 and the amount was borrowed by the accused and that she has executed the cheque. He had been subjected to severe cross examination and he had deposed that he was present when the amount was given. The accused was a teacher at the time of execution of the cheque. PW1 admitted that Ext.P1 is seen written in two inks. It is 3 CRL.A.NO.940/02 explained by him that the accused had brought it written. He had categorically denied the suggestion that his wife's sister was a partner in Wealth Finance, who had advanced Rs.20,000/= to the accused and at that time, had obtained a blank cheque which had been utilised for filing this complaint. It is also submitted that the loan amount to Molly Cherian has been discharged. Against this evidence what is available is only some answers in the 313 questioning and suggestions in the cross examination of PW1. 5. I am conscious of the fact that no criminal court can compel the accused to get himself examined as it is barred under Section 315 of the Code of Criminal Procedure. But, it is also equally settled principle now that in a Section 138 case the materials available produced by both sides can be looked into and the court can look into preponderance and probabilities to analyse and weigh the evidence available in the case. It is in this backdrop that one has to analyse the case. PW1, though a power of attorney holder, is the son of the complainant and he has asserted before the court that he was 4 CRL.A.NO.940/02 present at the time of the transaction as well as at the time of issuance of the cheque. Nothing has been brought out in cross examination to discredit that evidence. The court below discarded the case of the complainant on the ground that the cheque is written in two inks. There is no prohibition to do so and PW1 had explained that the cheque was brought written and was signed from there. So one cannot hold that there is evidence to prove that the blank cheque has been filled for the purpose of creating the case. There could be documents to prove the case of the accused and especially the discharge. Nothing is forthcoming. In the 313 questioning, I had meticulously perused the answers given voluntarily by the accused and recorded by the court. It is recorded that the blank cheque for Rs.19,000/= is given. There cannot be a blank cheque for that amount. Secondly, it is also written therein that the cheque was returned back to her. If the cheque is returned back to her, where is the question of somebody entering something on that cheque and presenting it without her knowledge. So, all is not well and the defence 5 CRL.A.NO.940/02 set up is only in the form of a suggestive theory and nothing else to substantiate. A statutory notice was issued and it was not replied at all. So, the materials available for the purpose of deciding the case is the evidence of Pw1 which on reading appears to be intrinsically reliable and inherently probable. It is backed up by other surrounding circumstances. Therefore, I find that the court below erred in mis appreciating the evidence to arrive at a decision to non suit the complainant. I am satisfied that the materials are available to prove that the cheque has been executed by the accused towards the discharge of the liability. So far as the other statutory requirements are concerned, even the court below has founded in favour of the complainant which does not warrant much discussion. From this discussion, I hold that the accused is guilty of the offence under Section 138 of the N.I.Act. 6. Now the next question is regarding sentence. The accused is a lady. The complainant may not be interested to see that the accused is to be behind the bars. The complainant will be satisfied if she is given back the amount. 6 CRL.A.NO.940/02 Under the provisions of the amended act, even the lower court is competent to levy a fine of double of the cheque amount. I feel that justice can be served by imposing the sentence of fine instead of imprisonment. Therefore, the appeal is disposed of as follows: 1. The judgment of the trial court is set aside. 2. The accused is found guilty under Section 138 of the N.I.Act. 3. The accused is convicted and sentenced to pay a fine of Rs.40,000/= which on realisation shall be disbursed to the complainant and in default, the accused shall undergo S.I for a period of two months. If the amount is not paid on or before 16.8.2009, the trial court shall execute the sentence in accordance with law. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.940/02 8 CRL.A.NO.940/02 beat