IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 CRL.A.No. 150 of 2002 ------------------------------------- CC.1369/1998 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY .................... APPELLANT/COMPLAINANT: K.A.CHACKO, AMBALAKKADAVIL, KURICHI P.O., CHANGANACHERRY. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENTS/ACCUSED & STATE: 1. JACOB THOMAS, THIRUNILATHU, KURICHI P.O., CHANGANACHERRY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.ANTONY C.ETTUKETTIL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 150 of 2002 --------------------------- JUDGMENT The complainant in C.C.No.1369/98 on the file of the Judicial First Class Magistrate's Court-II, Changanassery (No.II, Mobile Kottayam) is the appellant. In the complaint filed by him against the first respondent for offence under Section 138 of the Negotiable Instruments Act, the accused was found not guilty and was acquitted under Section 255(1) Cr.P.C. and hence the appeal with leave. 2. It is the case of the appellant that the first respondent borrowed an amount of Rs.83,500/- from him and issued Exhibit P1 cheque drawn on the State Bank of Travancore, Kurichi Branch in discharge of the said liability and that the cheque, on presentation, was dishonoured due to insufficiency of funds in his account to honour the cheque. Consequently, notice was issued to the first respondent intimating dishonour of the cheque and demanding payment of the amount covered by the CRA 150/02 2 cheque. But, the first respondent did not make payment of the amount nor did he issue any reply within the statutory period or ever thereafter. Hence, the complaint. 3. On appearance of the first respondent in the court below, the particulars of the offence was read over and explained to him and he was questioned. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted. On the side of the appellant, he gave evidence as PW1 and Exhibits P1 to P8 were got marked. 4. On the complainant closing his evidence, the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing against him and maintained that he is innocent. According to the first respondent, he had absolutely no financial transaction with the appellant. But, he was having financial transaction with A.Scaria, the brother of the appellant for the last several years and CRA 150/02 3 cheques and promissory notes had been issued to him and when Scaria issued lawyer's notice amounts were repaid to him and the transaction was settled and when return of the cheque was demanded, Scaria replied that he will trace out the promissory note and return it and later informed him that the cheque is lost, however, promising that if at all the cheque is traced out it will be returned. According to the first respondent, the cheques issued to Scaria were blank cheques and on the strength of one such blank such, Sosamma, the sister of Scaria, had filed another complaint at Kottayam, wherein, he was convicted and that the present case filed by the appellant is one so caused to be filed by the said Scaria. On the defence side, the said Scaria, the brother of the appellant, was examined as DW2 over and above DW1 and Exhibits D1 to D6 were marked. 5. The first respondent has no case that the statutory requirements for the maintainability of a CRA 150/02 4 complaint under Section 138 of the Negotiable Instruments Act are not satisfied in the instant case. His contention is only that the cheque is not the one issued to the appellant, but, is one among the several cheques issued to DW2, the brother of the appellant, in financial transactions with him and that the said cheque was being misused by DW2 causing this complaint to be filed through his brother, the appellant. 6. It is vehemently contended before me by the counsel for the appellant that no reply had been issued by the first respondent to Exhibit P6 notice intimating him of the dishonour of the cheque. It is seen that specific averment is made in exhibit P6 regarding issuance of Exhibit P1 cheque dated 9.2.1998 for Rs.83,500/- in favour of the appellant by the first respondent and of its dishonour on presentation and demand also is made for payment of the amounts covered by the cheque within fifteen days of receipt of the notice. Any ordinary CRA 150/02 5 prudent man would have issued a reply immediately to Exhibit P6 notice demanding a huge amount of Rs.83,500/- if at all he had not issued any cheque to the appellant as alleged. Strangely enough, in the instant case, no reply had been issued by the first respondent to Exhibit P6 notice. The first respondent has no case also that he has issued any reply to Exhibit P6 notice, which is seen to have received by him under Exhibit P5 postal acknowledgment card. Non issue of reply to Exhibit P6 notice goes a long way to show that the contention raised by the first respondent cannot, in the normal course, be true or genuine. To improbabilise the case of the appellant, the first respondent has caused Scaria, the brother of the appellant, being examined as DW2 and has got marked Exhibits D2 to D6 through him. The endorsement made on the reverse of Exhibit D2 goes to show that Scaria, the brother of the appellant, is a person, who lends money, obtaining promissory notes as well CRA 150/02 6 as cheques. All the same, the endorsement shows that he has returned the promissory notes and the cheques when the transaction was settled. According to the first respondent, the cheques other than Exhibits D4 and D5 had also been obtained and those were not returned and a complaint was caused to be filed by the sister of Scaria at Kottayam and the brother of Scaria on the basis of Exhibit P1 cheque, which had not been returned. DW2 has no case that any further amount is due from the first respondent to him. If at all other cheques also had been received and those were not returned while returning Exhibits D2 to D5, for the reason that those are missing, that also could have been got endorsed in the endorsement made on the reverse of Exhibit D2. The fact that no such endorsement or letter had been obtained from DW2 Scaria to the effect that any cheque issued to him is misplaced and would be returned as and when located also goes a long way to belie the CRA 150/02 7 contentions raised by the first respondent. There is no explanation even for the first respondent as to why on return of the entire amount and settling the transaction, the reason for non return of the suit cheque was not obtained in writing from DW2, if at all that was for the reason that it was missing or as to why he has not issued any reply to Exhibit P6 notice. This aspect belies his contentions and the court below has over looked these aspects while dismissing the compliant. In the result, reversing the order of acquittal passed by the learned Magistrate, I find the first respondent guilty of offence punishable under Section 138 of the Negotiable Instruments Act, convict him thereunder and sentence him to undergo imprisonment for a term of six months and to pay the cheque amount of Rs.83,500/- as compensation to the appellant. 7th January, 2008 (K.P.Balachandran, Judge) tkv CRA 150/02 8 K.P.Balachandran, J. --------------------- Crl.A.No.150 of 2002 --------------------- JUDGMENT 7th January, 2008