IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.A.No. 274 of 2001() ------------------------------ CRA.50/1998 of SESSIONS COURT, MANJERI ST. 1606/1995 OF THE JUDL. FIRST CLASS MAGISTRATE COURT-I, MANJERI. .................... APPELLANT(S): RESPONDENT/ COMPLAINANT ---------------------- MADATHIL ABOO, KAKKARA POST PULVETTA, KARUVARAKUNDU BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): APPELLANT/ ACCUSED ------------------------- 1. C.K.MOIDEENKUTTY, S/O. MUHAMMED, CHARIKODAN HOUSE, KUNDODU, POST THARISU, KARUVARAKUNDU. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.274 OF 2001 ------------------------------ Dated this the 7th day of August, 2009 JUDGMENT This is an appeal preferred against the judgment of the Sessions Judge, Manjeri in Crl.A.No.50/1998. In turn it was an appeal preferred against the conviction and sentence passed by the JFCM-I, Manjeri in ST.No.1606/1995. The brief facts necessary for the disposal of the appeal are stated as follows: 2. It is the case of the complainant that the accused had borrowed a sum of Rs.50,000/= and towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment returned with the endorsement of insufficiency of funds. A statutory notice was issued to which a reply was sent raising false contentions. As the amount was not paid, prosecution was launched under Section 138 of the N.I.Act. 3. The defence appears to that the accused has lost a cheque leaf and the complainant had misused that cheque leaf to file a case of this nature. The evidence in this matter consists of oral testimony of PW1 and Exts.P1 to P5 and C1 2 Crl.A.NO.274/01 and C2. The learned trial judge on the basis of the materials found the accused guilty and sentenced him to undergo S.I for three months. But in appeal, the learned Sessions Judge reversed the said finding and acquitted the accused. The learned Sessions Judge held that it is the burden of the complainant to prove that Ext.P1 cheque is signed by the accused and that it was one drawn by the accused in favour of the complainant and delivered to him. The appellate court felt that the evidence tendered is not sufficient and therefore acquitted the accused. 4. At the outset I may like to state how the matter has to be approached. I am conscious of the fact that under Section 315 of the Code of Criminal Procedure, in criminal case the accused cannot be compelled to let in any evidence. Similarly, the court is not expected to make any commend upon non production of the evidence by the accused. But, at the same time, it is the settled principle that when materials are placed before the court in a 138 N.I.Act case, the court is expected to consider all the materials available to find out 3 Crl.A.NO.274/01 the truth. It is in this backdrop we have to analyse the case. The complainant has been examined as PW1. He had deposed before the court that the accused had borrowed a sum of Rs.50,000/= from him on 3.2.1994 with a promise to pay back it within one month. When demanded after one month, he issued a post dated cheque bearing the date 3.4.1995 and it was that cheque which when presented for encashment got dishonoured. He had been cross examined and in the cross examination he would depose that the accused had borrowed the amount from his house and no other witnesses were available at that time. Both of them were business people as well. It is also stated that the cheque was issued from outside the bank. He had denied the suggestion that the name and letter written in the cheque is not in the handwriting of the accused. He had also categorically and stoutly denied the suggestion that the cheque of the accused has been misused to file a false case. Later notice was issued. An Omini bus reply was sent. The allegation in the reply notice is that a cheque had been lost from the custody of the accused. 4 Crl.A.NO.274/01 But, thereafter the accused did not take any action. So, the evidence available before the court is the one tendered by PW1. If the evidence of PW1 is acceptable, then the end of it. Is there any circumstance to disbelieve PW1 has to be considered. He had clearly spoken about when the accused approached him, when the amount was granted, how he issued the cheque towards the discharge of the liability and how he presented the cheque for encashment. There is nothing unnatural except throwing some wild suggestion, nothing is forthcoming. It has to be always believed that the cheque is a valuable property. It is expected to be written by a person in whose possession it is. When such a cehque was lost under ordinary circumstance, no prudent man may keep idle. In spite of the notice the accused is silent and no action is taken on the alleged missing of the cheque. 5. PW1's evidence does not show any inconsistency or untruth feelings. There is no rule of law that every transaction has to be witnessed by independent witnesses. So, I find that the learned trial judge was more correct when 5 Crl.A.NO.274/01 he analyzed the mater in the correct perspective to hold that Ext.P1 cheque is issued towards the discharge of the liability. Therefore the judgment of acquittal passed by the Sessions Judge is liable to be set aside and I do so. I find that the materials are sufficient to hold that the accused is guilty under Section 138 of the N.I. Act. 6. Now turning to the question of sentence. About one and a half decades have passed after the issuance of the cheque. There is no point in sending the accused in jail if he is really interested in making the payment. I feel justice can be met if he is willing to pay a compensation of Rs.50,000/- under Section 356(3) of the Cr.P.C and in default to undergo S.I for a period of three months. 7. In the result, the criminal appeal is allowed. 1. The order of acquittal passed by the Sessions Judge is set a side. The accused is found guilty and convicted there under. 2. He is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.50,000/= as 6 Crl.A.NO.274/01 contemplated under Section 357(3) of Cr.P.C and in default to undergo S.I for a period of three months. 3. The accused shall present himself before the trial court for receiving the sentence and for payment of the compensation on 15.10.2009 failing which the trial court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 7 Crl.A.NO.274/01 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.274 OF 2001 ------------------------------ 7th day of August, 2009 JUDGMENT