IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 CRL.A.No. 313 of 2002() ----------------------- ST.641/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT: APPELLANT/COMPLAINANT: ------------------------------------ BENNY JOSEPH, S/O. JOSEPH, KANJIRATHUKUNNEL HOUSE, MATHAICHIRA DESOM, MULAYAM, THRISSUR, MANAGER, SOUMYA KURIES AND LOANS PRIVATE LIMITED, MANGALODAYAM BUILDINGS, ROUND SOUTH, THRISSUR. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS: RESPONDENTS/ACCUSED: ----------------------------------- 1. V.V. JOSE, S/O. VAREED, VADAKKUMPADAN HOUSE, ANCHERY, OLLUR VILLAGE, THRISSUR. 2. THE STATE OF KERALA, REP. ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.DILIP J. AKKARA FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2008. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. ---------------------------------------------- Crl. Appeal No.313 of 2002-A --------------------------------------------- Dated this the 16th day of December, 2008. O R D E R This appeal is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The Court below acquitted respondent No.1/Accused holding that Ext.P4 cheque was not supported by consideration and that it was not issued in discharge of a legally enforceable debt or liability. The above order of acquittal is challenged in this appeal. 2. The appellant/complainant in his capacity as the manager of a chit company had averred in the complaint that the accused was a subscriber of one of the chitties conducted by the Company. He successfully bid in the auction in the chitty and received the chitty amount. Subsequently he stopped paying the instalments after 7.2.1996. Thus a total sum of Rs.23,677/- fell due towards the balance amount payable to the chitty account. The accused issued Ext.P4 cheque dated 8.11.1997 for a sum of Rs.23,677/- in discharge of the entire liability. But when the cheque was presented for encashment it was dishonoured due to insufficiency of funds in his account. The statutory demand notice Crl. Appeal No.313 of 2002-A : 2 : issued by the complainant was returned unserved, since the addressee refused to accept the same. He did not discharge the liability also. Hence the complaint. 3. The complainant was examined as PW1 and his witness, the Postman, was examined as PW2. Exts.P1 to P10 were marked on his side. There was no oral or documentary evidence on the side of the defence. 4. The complainant, while he was examined as PW1, deposed that the accused had joined the chitty in the company. He was the successful bidder of the chitty. At the time when the chit amount was disbursed to the accused, he had executed Ext.P3 kuri karar (chitty agreement), along with two witnesses. After receiving the money, the accused had remitted the instalments for sometime till 7.2.1996. But the amounts fell due thereafter. The chitty in question terminated in 1997. At that time a demand was made to the accused to pay off the liability. The accused issued Ext.P4 cheque dated 8.11.1997, for the balance sum of Rs.23,677/-. The said cheque when presented for encashment was dishonoured due to insufficiency of funds in his account. As mentioned earlier, the statutory notice was not accepted by the accused and he did not Crl. Appeal No.313 of 2002-A : 3 : discharge the liability also. 5. I have been taken through the deposition of PW1 elaborately. As rightly pointed out by the learned counsel for the appellant, the accused did not have a case that he had not executed Ext.P4 cheque. It is true that some questions were put to the complainant when he was examined in Court as PW1 with regard to the handwriting in Ext.P4 cheque and also about the alleged difference in the ink as well as the handwriting. Significantly there was not even a suggestion that Ext.P4 cheque was not issued by the accused or that there was no liability in connection with the chitty transaction. When the accused was questioned under Section 313 of the Code of Criminal Procedure also, he did not have a case that he had not issued Ext.P4 cheque. But the learned Magistrate proceeded to hold that the cheque was issued by the accused as security in connection with the chitty transaction. As mentioned earlier, such a suggestion was never made by the accused while PW1 was being cross examined. The specific case of the complainant was that the chitty amount was disbursed to the accused on the strength of Ext.P3 agreement. He asserted that the accused had issued Ext.P4 cheque in November 1997 in discharge of the liability which had Crl. Appeal No.313 of 2002-A : 4 : arisen because of the failure of the accused to remit the chit instalments. This contention of the complainant was also not challenged either in the course of cross examination of PW1 or while the accused was questioned under Section 313 of the Code of Criminal Procedure. In that view of the matter I am unable to sustain the finding of the learned Magistrate that Ext.P4 cheque was not supported by consideration or that it was not issued in discharge of a legally enforceable debt or liability. The learned Magistrate obviously overlooked the provisions contained in Section 118 of the Act. Similarly the provisions under Section 139 of the Act were also ignored by him. Therefore the above finding entered by the learned Magistrate is set aside. 6. Having perused the entire evidence adduced by the appellant/complainant, I have no hesitation to hold that the appellant had succeeded in proving the charge against the accused. As mentioned earlier, the learned Magistrate was not justified in holding that Ext.P4 was not supported by consideration or that it was not issued in discharge of a legally enforceable liability since such a case was never advanced by the accused. The accused did not have a case that he had handed over Ext.P4 blank cheque as security in Crl. Appeal No.313 of 2002-A : 5 : connection with the chitty transaction to the appellant. 7. In the totality of facts and circumstances and in the light of the evidence adduced by the complainant, I am satisfied that the accused is guilty of the offence punishable under Section 138 of the Act. Accordingly, the order of acquittal is set aside and respondent No.1/accused is found guilty under Section 138 of the Act. 8. As regards the sentence to be imposed on the accused, I am of the view that the accused has to be given an opportunity to be heard. Therefore the case is remitted to the trial court with a direction to the learned Magistrate to pass appropriate sentence on the accused after hearing him. This shall be done as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. Parties shall appear before the trial court on 15.1.2009. ab A.K.BASHEER JUDGE