IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 CRL.A.No. 249 of 2003() --------------------------------- CC.96/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT(S): COMPLAINANT ------------------------- A.S.MURALEDHARAN, H.NO.D1, INDAL SOUTH BLOCK QUARTERS, KUTTIKATTUKARA P.O., ALUPURAM. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR.G. RESPONDENT(S): ACCUSED ---------------------- 1. BALASUBRAMONIAN, BHORUKA ROADLINES LTD., 40/6164, T.D.ROAD, ERNAKULAM, KOCHI-35. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. MR.V.V.SIDHARTHAN FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/0/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.249 OF 2003 ------------------------------ Dated this the 15th day of July, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.96/2000 of the JFCM-II, Aluva. It is the case of the complainant that the accused had borrowed a sum of Rs. One lakh 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 and thereafter, prosecution has been initiated. 2. It appears to be the case of the accused that he had no acquaintance or transaction with the complainant. He had joined a kury conducted by the Greenland Enterprises and while receiving the money after biding the kury, he had given a blank cheque and a stamp paper as security and the complainant, being the relative of George, had made use of the cheque to file the complaint. 3. The evidence in this matter consists of the oral testimonies of PW1 and Dws1 to 5. Exts.P1 to P6 and Exts.D1 CRL.A.NO.249 / 2003 2 to D4 were marked. At the outset, I may like to point out that in a case under Section 138 of the N.I.Act, the burden of proving the execution of the cheque squarely rests on the complainant and the presumption would arise on proof of the execution and thereafter the said presumption can be rebutted by the accused by tendering evidence. It is also the settled proposition that when both the parties have chosen to adduce evidence, the court is competent to look into the evidence submitted by both sides to find out which is more probable and acceptable. 4. I am equally conscious of the fact that Section 315 of the Code of Criminal Procedure makes it very clear that no accused can be compelled to adduce evidence on his behalf and the court is not competent to commend upon the factum of non addusal of evidence by the accused. But, the situation changes when the accused places materials before the court. 5. PW1 would depose that he knows the accused and that he had advanced a loan of Rs. One lakh on 5.6.1999. According to him, Ext.P1 was issued in discharge of the CRL.A.NO.249 / 2003 3 liability. He had proved the other documents. In cross examination, he would depose that he got acquaintance with the accused from Kalamassery and that the complainant is working in Indian Aluminum Company and that the accused is working as Manager in a transporting company. He had admitted that he had not gone to that company. It is his version that he had joined a chit fund in Angamaly and that, amount has been taken for giving loan to the accused. He would further depose that he had given the amount for interest, but the cheque amount is not inclusive of the interest. It is also his version that his friend Sunil Kumar was available when Ext.P1 cheque was given besides his wife. He also speaks about the Greenland Enterprises and its office at Kalamassery. He does not know whether the accused had joined a kury in that enterprise. He had denied the suggestion that the blank cheque issued by George has been utilised by the complainant to file the complaint. Now the evidence adduced by the accused also has to be looked into. 6. DW1 is the accused. He would depose that he had CRL.A.NO.249 / 2003 4 joined a kury of the Greenland Enterprises and had bid the kury in auction and had given a blank cheque. He would depose that he had issued Ext.D2 notice and Ext.D3 acknowledgment card. It is his assertion that there are documents to show that he had joined the kury conducted by George. According to him, Ext.P1 cheque was given for the amount to be paid to the Greenland Enterprises. 7. DW2 is one Velayudhan, who is said to have accompanied the accused to the Greenland Enterprises at the time of handing over the blank cheque. Now, we come to the crucial instances. I don't know why the accused had chosen to examine DWs 3 to 5 as his witnesses. None of those witnesses has been declared hostile by the accused. DW3 is the person namely George to whom the accused is said to have issued the cheque. He had categorically asserted that he is not conducting the Greenland Enterprises and that his wife is a partner. He does not know whether the accused has joined the kury therein and he had categorically asserted that the accused had not given any blank cheque or stamp CRL.A.NO.249 / 2003 5 paper to him. So, it is the version of the witnesses examined by the accused. 8. DW4 is the Managing Director of a chit fund at Angamaly. He would prove that the complainant had joined a kury and an amount of Rs.34,190/- had been given to the complainant towards the chit amount. This evidence also goes against the accused. 9. DW5 is another person by name Varghese Paul. He would admit that he is a partner in the Greenland Enterprises and he admits the joining of the kury by the accused but he would categorically assert that no blank cheque and no blank stamp paper had been obtained by them from the accused. He also asserts that “ “. So, the evidence of DWs 3 to 5 would cut at the root of the case of the accused because as witnesses of the accused, they had not supported his case and they had clearly asserted that no blank cheque had been issued to the Greenland Enterprises. So, the defence falls to the ground. CRL.A.NO.249 / 2003 6 10. What is left out is the evidence of PW1. Pw1 had spoken about the source of consideration proved by DW4 and also the issuance of the cheque and signing of the cheque in front of him. Admittedly the check leaf also belonged to the accused. 11. So, an over all analysis of the evidence of DWs 1 to 5 and the documentary evidence available, it has to be held that the evidence of PW1 is more acceptable to hold that he had advanced a loan of Rs. One lakh and that the accused in discharge of the liability, had issued Ext.P1 cheque which when presented for encashment, had returned with the endorsement of insufficiency of funds. Therefore, I reverse the finding of the trial court and find that the accused is guilty of the offence under Section 138 of the N.I.Act. 12. So far as the sentence is concerned, I do not want the accused to be sent to jail for a long period. The purpose will be served by sentencing him to undergo imprisonment till the rising of the court and to pay a compensation of Rs. One lakh under Section 357(3) of the Criminal Procedure Code CRL.A.NO.249 / 2003 7 which on realisation shall be disbursed to the complainant. 13. In the result, the criminal appeal is allowed. 1. The order of acquittal passed by the learned Magistrate is set aside and the accused is found guilty under Section 138 of the N.I.Act. 2. The accused is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs. One lakh under Section 357(3) of the Criminal Procedure Code, on default of which he shall undergo S.I imprisonment for three months. 3. On realisation of the compensation amount, it shall be disbursed to the complainant on appropriate application. M.N. KRISHNAN, JUDGE cl CRL.A.NO.249 / 2003 8 CRL.A.NO.249 / 2003 9 CRL.A.NO.249 / 2003 10 CRL.A.NO.249 / 2003 11