IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 CRL.A.No. 425 of 2001() ----------------------- CC.609/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... APPELLANT/COMPLAINANT -------------- BABU RAJ, PUTHALATHU, PANTHALAYANI, KOYILANDY BY ADV. SRI.M.P.JAYARAJ RESPONDENT(S)/ACCUSED --------------- 1. P.PRADEEPAN, PADINHARAYIL HOUSE, KUNNATHARA, KANNUR, KOYILANDY 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR ADV. SRI.B.V.JOY SANKER FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.425/2001 -------------------- Dated this the 11th day of March, 2009 JUDGMENT The complainant in C.C.No.609/97 on the files of the Judicial Magistrate of First Class, Koyilandy, is the appellant herein. The accused was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act. The Court below, on an appreciation of the evidence, found the accused not guilty and proceeded to acquit him. The complainant has come up in appeal after obtaining leave of this Court. 2. The case of the complainant is that the accused had borrowed an amount of Rs.25,000/- and had issued Ext.P1 cheque dated 1.7.1997 for an amount of Rs.25,000/-. The cheque, on presentation, was dishonoured for want of sufficient funds. Ext.P3 lawyer’s notice was sent. This was met with Ext.P5 reply in which the accused had raised the Crl.A.425/2001 2 contention that the cheque was not issued in discharge of any liability, but only as a security. The Court below formulated the following points for consideration. (i). Whether the accused has committed an offence punishable under Section 138 of the N.I.Act ? (ii).Punishment if any ? (iii).Order if any regarding compensation ? 3. The Court below considered the issue under two heads. As to whether the complainant has complied with all formalities, the Court below entered a finding to the effect that the complainant has complied with the formalities. It was also found by the Court below that the accused has admitted his signature in Ext.P1 cheque and that the complainant is entitled Crl.A.425/2001 3 to the presumption under Section 139 of the Negotiable Instruments Act. It was further found that the accused has failed to adduce any evidence to rebut the presumption available under Section 139 of the Act. But, on the premise that the complainant has not proved that Ext.P1 cheque was issued by the accused from an account maintained by him in a Bank, Court below proceeded to acquit the accused. This is under challenge in this appeal. 4. I heard learned counsel for the appellant. 5. The accused has practically admitted his signature in Ext.P1, even in the reply notice. Nor is there any suggestion to the contra in the cross-examination of PW1. In fact, the contention in the reply notice is that the cheque was issued by the accused as a security. One of the prominent reasons Crl.A.425/2001 4 given by the Court below, to find that the complainant has not proved that the cheque was issued from the account maintained by him, is the absence of a number of the account holder, as contained in Ext.P1 cheque, in the dishonour memo, Ext.P2. I have perused Exts.P1 and P2. The absence of the said number is of no consequence. The dishonour memo gives the number of cheque in question. 6. More importantly, the accused himself had no case that the cheque leaf issued by him did not relate to an account maintained by him in the State of Bank of India. Had it been so, it would have been the first contention to be taken up in the reply notice. It would have also been mentioned in the dishonour memo. I am afraid that the Court below has given a reason, which does not seem to arise from the evidence on record or the contentions raised by the Crl.A.425/2001 5 parties. The reasoning given by the Court below to enter a finding of acquittal, is clearly unsustainable. The rest of the evidence show that the complainant has discharged his burden under Section 138 of the Act, apart from the initial presumption that is available to him under Section 139 of the Act. The issuance of the cheque is admitted. The nature of the transaction has been spoken to by DW1. Absence of any evidence to indicate that the accused had taken steps for return of the cheque, is also noteworthy. In these circumstances, evidence on record, would clearly warrant a conviction of the accused under Section 138 of the Act. 7. Accordingly, the appeal is allowed. The order of acquittal is set aside. The accused is found guilty under Section 138 of the Act. He is sentenced to pay a fine of Rs.5,000/- and also to pay to the Crl.A.425/2001 6 complainant an amount of Rs.25,000/- as compensation. The fine and compensation shall be deposited within two months from today. If the accused fails to pay the fine, then, he shall undergo simple imprisonment for a period of three months. In the event of the accused failing to pay the fine and compensation, the Magistrate shall take steps and proceed to see that the sentence is executed in accordance with law. V.GIRI, Judge mrcs