IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 CRL.A.No. 1364 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.186/2003 Dated 14/07/2003 ST.3650/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT: ----------------------------------------- P.D. ANTO, S/O. DEVASSY POZHATHIPARAMBIL HOUSE, IRINJALAKUDA. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH RESPONDENTS/ ACCUSED & STATE: ---------------------------------------------------- 1. P.K. RAJEEV, KRISHNAN, PALLIPURATHUKARAN HOUSE, PULLUR, IRINJALAKUDA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.RAJEEV FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON 15/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1364 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 3650 of 1999 on the file of the Judicial First Class Magistrate, Irinjalakuda. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. The accused had borrowed an amount of Rs.1,80,000/- and he executed Ext.P1 cheque. When presentation, the cheque was dishonoured on 24.3.1999 for the reason 'funds insufficient'. Accordingly intimating the dishonour of the cheque and demanding payment of the amount, the complainant sent Ext.P3 lawyer notice on 1.4.1999, which was received by the accused on 7.4.1999. But no amount was paid. Hence the complaint. Crl.A. No. 1364 of 2003 2 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P5 were marked. No evidence was adduced from the defence side. The learned Magistrate, on considering the evidence, found that when the complainant was examined as PW1, he did not speak about the issuance of the mandatory notice as required by the proviso (b) to Section 138 of the N.I. Act and therefore the accused was acquitted under Section 255(1) Cr.P.C. Against that judgment the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the learned Magistrate ought to have found that Ext.P3 demand notice was sent to the accused and the same was received by him. The learned counsel for the appellant submitted that absence of deposition to the effect that the complainant sent notice demanding the amount is not at all fatal to the prosecution. The learned counsel further submitted that the lawyer notice making the demand was marked as Ext.P3. Crl.A. No. 1364 of 2003 3 The learned counsel for the first respondent supported the judgment of the court below. 6. When the complainant was examined as PW1, he deposed that the accused borrowed Rs.1,80,000/- from him agreeing to repay the same within one week and when he demanded back that amount, the accused issued Ext.P1 cheque on 20.3.1999. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo. PW1 deposed that he sent Ext.P3 lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. Ext.P4 is the postal receipt. PW1 deposed that the accused accepted the notice, but he did not repay any amount. Ext.P5 is the postal acknowledgment signed by the accused. 7. When cross examined the case of the accused was that Ext.P1 cheque was given by him as security to one Varghese, Proprietor of Viswas Finance, when the accused borrowed Rs.10,000/- from him. PW1 denied the defence case. In chief examination PW1 deposed that Crl.A. No. 1364 of 2003 4 the accused signed Ext.P1 cheque in his presence. In cross examination the accused did not challenge this. On perusing Ext.P3 lawyer notice, it is seen that as per the notice the complainant intimated the accused about the dishonour of Ext.P1 cheque and he demanded payment of the amount. Therefore, the learned Magistrate is not justified in finding that there was no demand notice as contemplated under proviso (b) to Section 138 of the N.I. Act. 8. Since execution of Ext.P1 cheque is proved by the complainant, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. But the accused has not adduced any evidence to rebut that presumption. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, he is convicted for that offence. Crl.A. No. 1364 of 2003 5 11. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,80,000/- would meet the ends of justice. 12. Accordingly this appeal is allowed. The judgment of acquittal in S.T.No.3650 of 1999 on the file of the J.F.C.M. Court, Irinjalakuda under Section 255(1) is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.1,80,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and Crl.A. No. 1364 of 2003 6 produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid period, he shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm