IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRL.A.No. 1098 of 2003() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLLP.154/2003 DATED 01/07/2003 ST.7718/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT: ----------------------------------------- K.P. POULOSE, S/O. PYLOTH, AGED 57 YEARS, KOODALI HOUSE, NENMENIKARA P.O., PUTHUKAD, THRISSUR. BY ADV. MR.N.UNNIKRISHNAN RESPONDENT/ACCUSED: ------------------------------------ C.L. THIMOTHY, S/O. LONAPPAN, CHERUVATHOOR HOUSE, KALLUR P.O., THRISSUR. BY ADV. DINESH.R.SHENOY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1098 OF 2003 ------------------------------ Dated this the 8th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal in ST.No.7718/1998 of the JFCM, Irinjalakuda, It was a complaint filed under Section 138 of the N.I.Act with the averment 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. Thereafter on complying with the statutory mandate, prosecution has been launched under Section 138 of the N.I.Act. 2. In the court below, PW1 was examined and Exts.P1 to P6 were marked. The trial court held that the execution of the cheque has not been proved and there is no evidence tendered by the complainant to prove that the accused had discharged the liability. It is against that decision, the present appeal is filed. 3. The points that arise for determination are (1) whether the order of acquittal passed by the court below is just 2 CRL.A.NO.1098/2003 and proper (2) whether the accused has committed guilt under Section 138 of the N.I.Act (3) if so, what is the quantum of punishment. 4. Heard learned counsel. Perused the records. It is the case of the prosecution that in August, 1998 exactly on 1.8.1998 the accused had borrowed a sum of Rs.50,000/= and later on 13.8.1998 had issued a cheque towards the discharge of the liability. The possible defence of the accused appears to be that he had borrowed a sum of Rs.10,000/= from the complainant and at that time had given two blank signed cheques which inspite of return of Rs.10,000/= had not been returned and therefore, one of such cheques must have been utilized for the filing of the complaint. 5. I am conscious of the fact that execution of a document does not ipso facto follow from the mere admission of the signature in a blank paper or even in a blank signed cheque. So far as the signature aspect is concerned, PW1 had spoken in the chief examination that the cheque was brought written and it was signed in his presence. In the cross examination when a question was put to him, he has stated 3 CRL.A.NO.1098/2003 that the figure was also written in front of him. The court below held that in the cross examination, the complainant did not speak the factum of putting the signature of the accused in his presence. It has to be remembered that a specific answer has been given in the chief examination. In the 313 questioning also, there is an admission regarding handing over of the two blank signed cheques. So putting these two things together, it is clear that the signature in Ext.P1 is that of the accused. 6. Now, turning to the execution. There is no rule that the entire hand writing in a cheque should be by the person who issues it. The signature should be that of him. People also bring cheque written and sign it in the presence of the person to whom it is issued. It has to be borne in mind at the time of the financial transaction that unless there is mutual confidence and faith, the transaction will not come into play. So it is in this backdrop, we have to analyse the situation. Some amount has been borrowed at some point of time is admitted by the accused which shows that there had been transactions between the accused and the complainant. Under 4 CRL.A.NO.1098/2003 such circumstances, when PW1 enters the box and gives evidence that a cheque was brought written and was signed in his presence requires real consideration. Nothing has been brought out in the cross examination to shatter the evidence of the complainant. I am equally aware of the fact that under Section 315 of the Criminal Procedure Code, an accused cannot be compelled to adduce evidence and further nothing can be commended upon regarding the absence of any evidence which is not tendered by the accused. But in 138 cases, which is of a quasi criminal nature, really there are decisions which hold that analysis of the evidence in such cases can be on the basis of the preponderance of probabilities placed by both sides. Here the evidence is only forthcoming from one side namely the defacto complainant which does not suffer from any serious infirmity. Therefore, I have no hesitation to hold that the learned Magistrate had gone wrong in approaching the subject in the correct perspective. Materials are sufficient to hold that the accused in discharge of the liability had issued Ext.P1 cheque. The next point on which the complaint has been thrown out appears to be quite strange. 5 CRL.A.NO.1098/2003 A statutory notice has been issued demanding payment making very clear that no amount is paid and therefore a request is made to pay the amount within 15 days from the date of receipt of the notice. Unfortunately, the accused did not send any reply at all. PW1 had no case at any point of time that any amount has been paid towards the discharge of the liability. At least discharge of the liability has to be proved by the person who pleads the discharge. Here there is no case for the accused that he has discharged Rs.50,000/= at all and his case is altogether of a different transaction. So, the finding is erroneous which requires interference. Now, it has to be held that on dishonour of the cheque, a notice had been issued, mandatory provisions of the N,.I.Act are seen complied with and therefore from these discussions, I hold that the accused committed guilt under Section 138 of the N.I.Act and therefore he is liable to be convicted and I do so. 7. Now turning to the sentence. If really the accused wants to discharge the amount and avoid jail, I see some leniency can be shown under the amended provisions of the N.I.Act by which the Magistrate is competent to levy double 6 CRL.A.NO.1098/2003 the amount of cheque as fine. I feel that at least a direction can be given to pay the cheque amount as fine in this case. 8. Therefore the criminal appeal is disposed of on the following terms. 1. The order of acquittal passed by the court below is set aside. 2. The accused is found guilty under Section 138 of the N.I.Act and convicted thereunder. He is directed to pay a fine of Rs.50,000/= which on realisation shall be disbursed to the complainant on proper application and in case of default, the accused is directed to undergo S.I for a period of two months. If the amount is not paid on or before 16.8.2009, the court below shall execute the sentence. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.1098/2003 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1098 OF 2003 ------------------------------ 1st day of June, 2009 JUDGMENT 8 CRL.A.NO.1098/2003