IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 CRL.A.No.139 of 2001 (A) ------------------------------ CRA.358/1998 of SESSIONS COURT, THRISSUR .................... APPELLANT/FIRST RESPONDENT/COMPLAINANT: ---------------------------------------------------------- ABOOBACKER T.M., AGED 32 YEARS, S/O MUTHU, THERIYATH HOUSE, KURANCHERY DESOM, MINALOOR VILLAGE, THALAPPILLY TALUK, TRICHUR-680058. BY ADV. SRI.P.RADHAKRISHNAN (1) RESPONDENTS/APPELLANT/ACCUSED: --------------------------------------------- 1. SOMANADHAN, AGED 42 YEARS, S/O VELU, MANCHERY HOUSE, MINALOOR VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.S.M.PREM SMT.K.P.SANTHI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.139 of 2001 ------------------------------------------------ Dated this the 1st day of February, 2008 JUDGMENT The complainant in a complaint filed under Section 138 of the N.I. Act before the Judicial First Class Magistrate's Court, Wadakkanchery is the appellant in this appeal. The appeal is filed against acquittal of the first respondent of an offence under Section 138 of the N.I. Act vide judgment of the Sessions Judge, Thrissur in Criminal Appeal. 358/98 reversing the judgment passed by the Judicial First Class Magistrate, Wadakkanchery convicting the appellant and sentencing him for offence under Section 138 of the N.I. Act. 2. Heard the submissions of the counsel and the Public Prosecutor for the second respondent. 3. The appellant filed complaint before the Magistrate alleging that the first respondent had borrowed from him an amount of Crl. Appeal No.139 of 2001 -2- Rs.10,000/- and in discharge of that debt he issued Ext.P1 cheque dt.07/03/94 drawn on his account at the Pazhayannur branch of the South Indian Bank; that on forwarding of the cheque for collection through his bankers viz. the Wadakkanchery branch of Canara Bank, it was returned dishonoured by the drawee bank under Ext.P2 memorandum assigning the reason “funds insufficient”; that thereupon, the original of Ext.P3 notice was issued through lawyer intimating the first respondent of the dishonour of the cheque and demanding payment of the amount covered by the cheque that the said notice was received by the first respondent under Ext.P6 acknowledgment card and he issued Ext.P4 reply setting up false contentions and that the first respondent has not paid the amount covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the Crl. Appeal No.139 of 2001 -3- N.I. Act. 4. The learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act registering it originally as S.T.883/94 but later, it was converted as C.C.51/96. As the first respondent pleaded not guilty before the trial court when particulars of the offence were read over and explained to him, a trial of the case was conducted by the court below. It appears that originally vide judgment dt.24/06/97 the first respondent was acquitted of the offence under Section 138 of the N.I. Act under Section 255(1) of the Criminal Procedure Code and the appellant took up the matter before this Court in Criminal Appeal No.455/97 which was allowed and the matter remitted back to the trial court. The case was thereafter, renumbered assigning the number as C.C.959/97. The learned Magistrate considered the case in the light of the evidence adduced in the case which consisted Crl. Appeal No.139 of 2001 -4- of oral evidence of PWs.1 and 2 and DW1 and documentary evidence of Exts.P1 to P8 and found that the first respondent has committed an offence punishable under Section 138 of the N.I. Act; convicted him thereunder and sentenced him to pay a fine of Rs.20,000/- and in default to undergo simple imprisonment for a period of three months. Against the conviction and sentence, he preferred Criminal Appeal No.358/98 before the Sessions Court, Thrissur and the Sessions Judge vide judgment dt.29/06/2000 allowed the appeal and set aside the conviction and sentence passed by the learned Magistrate and acquitted the first respondent granting him benefit of doubt. Hence, this appeal by the aggrieved complainant. 5. It is vehemently argued before me by the learned counsel for the appellant that the appellate court has without sufficient materials interfered with the conviction and Crl. Appeal No.139 of 2001 -5- sentence passed by the trial court and has acquitted the appellant on wrong assumption that the presumption under Section 139 of the N.I. Act in favour of the payee under the cheque stands rebutted by the evidence adduced on the defence side coupled with Ext.P4 reply notice and the statement of the first respondent; whereas in fact, Ext.P4 reply notice sent by the first respondent when considered along with the stand taken by him when questioned under Section 313 Cr.P.C as also the evidence adduced on his side by examination of DW1 will go to show that the contention raised by the first respondent is false and that he was not entitled to an acquittal as found by the first appellate court. 6. There is no dispute that all statutory formalities which are prerequisites for the maintainability of a complaint under Section 138 of the N.I. Act do not stand satisfied in Crl. Appeal No.139 of 2001 -6- the instant case or that the dishonour of Ext.P1 cheque was for any other reason and not for reason of “insufficiency of funds” in the account of the first respondent. Consequently, therefore, the only question to be decided is as to the truth of the case set up by the appellant and as to whether his case stands established on evidence. 7. The receipt of Ext.P3 notice by the first respondent under Ext.P6 postal acknowledgment card is not in dispute. In fact, to the said notice, he has issued Ext.P4 reply wherein the contention raised by the first respondent is that no amount is due to the appellant and he had not received any amount by way of loan from the appellant and had not issued any cheque; that during 1991 he had availed of a loan of Rs.5,000/- from Santhosh of Puthoorkara who was the karate master of the appellant and by way of security Ext.P1 cheque was issued to the said Santhosh Crl. Appeal No.139 of 2001 -7- and that the said loan was repaid in eight weeks by making payment of Rs.625/- each per week through the appellant to the said Santhosh and the appellant had been instructed to get back the said cheque from Santhosh as the appellant was very close to him, himself and the appellant being workers of the Congress Party hailing from the same place and were workers also of Pioneer Arts Society at Kurancherry; that the appellant had informed him that cheque is received back but that it is lost from his possession; and that he believed the appellant and was under the impression that the cheque is lost and he did not take any steps as amount due to Santhosh has already been returned. He had set up a further case in Ext.P4 reply that while availing of the said loan from Santhosh during 1991, he was having business at Pazhayannur and was then having an account at the bank at Pazhayannur but that after his marriage in Crl. Appeal No.139 of 2001 -8- 1991, he continued to conduct the business only for a short while and by the end of 1991, he stopped his business and he did not continue the bank account or issue cheque to anyone; that in connection with a criminal case the appellant wanted him to be a witness for him to which he did not agree and it is on account of that animosity that the appellant who was his friend developed animosity towards him and has filed the complaint misutilising the cheque got back from Santhosh which the appellant had made him to believe, is lost from his possession. But when questioned under Section 313 Cr.P.C the stand taken by the first respondent belies the stand taken by him in Ext.P4 reply notice as what is stated in 313 examination is that he has absolutely no acquaintance with the appellant; that while he borrowed an amount of Rs.5,000/- from the first respondent's friend/Santhosh, he had issued a cheque by way of security and that Crl. Appeal No.139 of 2001 -9- the said cheque might have been utilised for foisting such a case against him. 8. However, in defence, the said Santhoshkumar is examined as DW1. According to him, the first respondent was being taken to him by the appellant for a loan of Rs.5,000/- from him to the first respondent and then he issued a blank signed cheque without filling up the amount; that the amount so advanced was being repaid by the appellant and therefore, the cheque was entrusted to the appellant and that was in 1991 and that he is not aware as to whether any other cheque had been given by the first respondent. However, in cross examination he has stated that the last three digits of the cheque leaf so entrusted by him to the appellant is “148” but when asked as to whether there was any reason to memorise that number, he has stated that there is no reason. This shows that the appellant was a friend of the first respondent and it was through the Crl. Appeal No.139 of 2001 -10- appellant that he approached Santhosh for loan. The first respondent cannot blow hot and cold at the same time. His stand when questioned under Section 313 is inconsistent with the stand taken by him in the reply notice (Ext.P4) and the evidence attempted to be let in through DW1. Though the first respondent has pleaded ignorance of the appellant, his own witness as DW1 has stated that the first respondent was approaching him through the appellant for a loan of Rs.5,000/-. The interest DW1 has in the first respondent is evidenced when he swears that the last three digits of the cheque is “148” and admits that there is no reason to remember the said three digits. It is common knowledge that usually people do not remember cheque numbers unless it is made mention of with reference to any noting made in any document. DW1 was not making reference to documents to give the last three digit numbers of Ext.P1 Crl. Appeal No.139 of 2001 -11- cheque. Further, the cheque is dt.07/03/94. The appellant's case is that he advanced Rs.10,000/- and on demand for return of the amount, the first respondent was issuing Ext.P1 cheque signed in his presence and with date 07/03/94. If that be so, certainly, Ext.P1 cheque is one issued in 1994. The specific contention raised in Ext.P4 reply by the first respondent is that he was having an account in the drawee bank namely Pazhayannur branch of the South Indian Bank during 1991 when he was having business at Pazhayannur but that after his marriage in 1991 he did not continue business nor did he continue the account or issue cheque to anyone. If at all that be so, the extract of the accounts of the first respondent at Pazhayannur branch of the South Indian Bank would have shown that ever after 1991, there was no transaction at all in his account, if at all the stand taken by him is true. He has not made any effort to produce Crl. Appeal No.139 of 2001 -12- details of the account maintained by him with the drawee bank on which he has drawn Ext.P1 cheque on 07/03/94. These are all telling circumstances, against the truth of the contentions set up by the first respondent. Under such circumstance, formal proof tendered by PW1 to establish the case set up coupled with the presumption available in his favour under Section 139 of the N.I. Act has established his case and the first respondent has not been able to rebut the presumption so available in favour of the appellant to any extent whatsoever. The acquittal of the first respondent, in the circumstances, by the first appellate court is incorrect. Consequently, this appeal deserves to be allowed setting aside the judgment of the first appellate court. 9. In the result, I set aside the acquittal of the first respondent vide judgment assailed and convict him for offence Crl. Appeal No.139 of 2001 -13- under Section 138 of the N.I. Act. He is sentenced to undergo simple imprisonment for a period of four months and to pay an amount of Rs.15,000/- by way of compensation to the appellant/complainant. The learned Magistrate shall take steps forthwith to have the sentence enforced against the first respondent/ accused. K.P.BALACHANDRAN, JUDGE kns/-