IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 CRL.A.No. 1470 of 2009() ---------------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.558/2009 Dated 22/07/2009 CRA.615/2006 of II ADDL. SESSIONS COURT, TRIVANDRUM. ..................................... APPELLANT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- SHAJI S., VILANGARA KUNNU, CHEMBOOR, OTTASEKHARAMANGALAM, NEYYATTINKARA. BY ADV. SRI. K.A.SALIL NARAYANAN RESPONDENT(S): APPELLANT/ACCUSED & STATE: --------------------------------------------------------------------------------- 1. T.S.KRISHNAKUMAR, CHERIYAPOONKARATHALA, CHEMBOOR, OTTASEKHARAMANGALAM, NEYYATTINKARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. C.M. NAZAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ----------------------------------------- Crl.Appeal. No. 1470 of 2009 ----------------------------------------------------- Dated this the 23rd day of July, 2010 JUDGMENT The complainant in a prosecution for the offence u/s.138 of Negotiable Instruments Act, preferred this appeal challenging the order of acquittal recorded by the lower appellate court. 2. The case of the appellant is that the accused/respondent borrowed a sum of Rs.60,000/- (Rupees Sixty thousand only) from the appellant/complainant on 24.09.2002 and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 24.09.2002 with a stipulation that the same shall be presented only after one week. Accordingly, the complainant presented the cheque for encashment but the same was dishonored as per Ext.P2 memo for the reason that there was 'no sufficient funds' in the account maintained by the accused and accordingly the complainant caused to sent a statutory notice to the accused informing him the dishonor of the cheque and demanding for the payment of the amount covered by the dishonoured cheque but the same was not acted upon. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-III, Neyyattinkara by filing a formal complaint Crl.Appeal. No. 1470/2009 2 alleging the offence u/s.138 of the Negotiable Instruments Act and the above court took cognizance upon the above complaint for the said offence and instituted C.C No.402/2003. Subsequently the case was transferred to the Judl. First Class Magistrate Court-VI, Neyyattinkara where upon the case is renumbered as C.C. No.214/2005. During the trial of the case, the complainant himself mounted to the box and gave oral evidence as PW1 and besides that he had also produced Ext.P1 to P5 documents in support of his case. Suffice to say no evidence, either oral or documentary produced from the side of the defence. The trial court after an elaborate consideration of the materials and evaluation of the evidence on record found that Ext.P1 cheque was issued by the accused in discharge of debt which due to the complainant and it is further found that the complainant has established the case against the accused and accordingly found that the accused is guilty u/s.138 of the Negotiable Instruments Act and thus convicted the accused u/s.138 of the N.I Act and on such conviction, he is sentenced to undergo simple imprisonment for 3 months and also directed to pay a sum of Rs.60,000/- to the complainant as compensation u/s.357(3) of Cr.P.C and the default sentence is fixed as 2 months simple imprisonment. Crl.Appeal. No. 1470/2009 3 3. Aggrieved by the said order of conviction and sentence, of the trial court, the accused had preferred Crl. Appeal No.615/2006 before the Sessions Court and by Judgment dated 24.01.2009 in Crl. Appeal 615/2006, the court of Addl. Sessions Judge-II, Thiruvananthapuram, interfered with the findings of the trial court and also the order of conviction and sentence and finally allowed the appeal setting aside the conviction and sentence imposed against the accused and he is accordingly acquitted. 4. It is against the above order of acquittal recorded by the lower appellate court, the complainant preferred this appeal. 5. Initially by order dated 22.07.2009 in Crl.M.C No.558/2009, a learned Judge of this court granted leave to file this appeal and accordingly the present appeal is preferred which came up for admission on 18.12.2009 and on admitting the appeal, notice was issued on the same day and the first respondent/ accused, though he had received the notice, he has not appeared either in person or through counsel and no objection is raised against this appeal. 6. Thus, I have heard Mr. Salil Narayanan, learned counsel appearing for the appellant, I have carefully perused the judgments of the court below and also gone through the Crl.Appeal. No. 1470/2009 4 materials and evidence on record. 7. The learned counsel for the appellant vehemently submitted that the lower appellate court committed erroneously interfered with the order of conviction and sentence recorded by the trial court, that too without assigning any proper, legal and acceptable reasons. The learned counsel pointed out that without going into the legal questions involved in the case, the lower appeallate court simply based upon surmise and conjunctures interfered with the finding of the learned trial Magistrate. In support of the arguments, the learned counsel invited my attention to paragraph 5 of the judgment impugned. It is also submitted that the observations and findings made by the lower appellate court is against the evidence and the materials on record. 8. I have carefully considered the contention raised by the learned counsel for the appellant and also closely perused the judgments of the lower appellate court. In paragraph 5 of the judgment of the appellate court, the learned Sessions Judge has stated, “even though the complainant undertook to produce the document showing the account of his mother, no scrap of paper produced”, “the inconsistency in the oral evidence has tendered by the complainant with respect to the amount of Rs.60,000/-”, Crl.Appeal. No. 1470/2009 5 “and its ownership would stand against the case advanced by the complainant”, “The inconsistency further stands by the ignorance pleaded by him with respect to the exact amount withdrawn by her mother from her account”. Finally, learned Sessions Judge concluded that the case advanced by the complainant suffers so many improbabilities, such as a huge amount was advanced by him to the accused without knowing the urgency of the accused and the amount was kept by the complainant even according to him for the marriage of her sister and also the case of the complainant that it was kept by her mother and then pleaded ignorance regarding how much amount was withdrawn by her mother etc.. I am quiet unable to endorse the above observation and findings of the lower appellate court. 9. It is pertinent to note that the complainant approached the court of law alleging an offence against the respondent/accused u/s.138 of the N.I Act, stating that the accused obtained a loan of Rs.60,000/- from him and towards the discharge of the said liability, the accused issued a cheque which presented for encashment, dishonoured and the amount covered by the cheque was not cleared inspite of formal statutory notice. Upon such allegations, the trial court found that the accused had committed the offence, since the cheque in question was issued Crl.Appeal. No. 1470/2009 6 towards the liability, which is legally enforceable against the accused at the instance of the complainant. The trial court after having an elaborate discussion of the materials and evidence on record and the scope of various legal provisions involved in the matter, finally came into a conclusion that the case put forward by the defence is not probable especially in the light of the admission regarding the execution and issuance of the cheque by the accused. But the lower appellate court, no attempt is made to examine the correctness of the reason given by the trial court after re-appreciating the evidence on record. On the other hand, the appellate court in an evasive manner and too on consideration of irrelevant materials, interfered with the findings of the trial court. 10. In this case, it is to be noted that the specific plea set up by the accused during the trial is to the fact that there was no transaction between the accused and the complainant and according to him the cheque in question is the one which he entrusted with the uncle of the complainant connected with the transaction between himself and the said uncle of the complainant. Absolutely, no evidence is adduced by the defence to establish the above plea and no explanation is forth coming on the basis of any material and evidence, as to how Ext.P1 Crl.Appeal. No. 1470/2009 7 cheque happened to be in the possession of the complainant. Of course, in a case for the prosecution u/s.138 of the N.I Act, the accused need not disprove the case of the complainant inorder to discharge his burden of rebutting the presumption. It is also not necessary that inorder to rebut the presumption, he should discharge his burden beyond reasonable doubt as in the case of the prosecution. But mere denial of transaction, execution and issuance of the cheque is not sufficient to discharge the burden of rebutting the presumption and what expected is to probabilise the plea of the defence by preponderance of probabilities. As I indicated earlier, no rebuttal evidence is adduced by the accused. When the accused admitted the execution and issuance of the cheque, though not as claimed by the complainant, it is for the accused to establish that the cheque in question reached in the hands of the complainant in the manner which he pleaded. But in the present case absolutely there is no evidence in this regard. Therefore, the trial court is absolutely correct in convicting the accused for the offence u/s.138 of the N.I. Act. 10. But, the lower appellate court without answering any of the legal questions involved in the case and ignoring the evidence and materials on record but based upon erroneous consideration of certain irrelevant facts, came into a conclusion Crl.Appeal. No. 1470/2009 8 that the case advanced by the complainant suffer some improbabilities. The reasons pointed out by the lower appellate court to disbelieve the version of PW1 and to acquit the accused, appeals are absolutely baseless and based upon misconception of law involved in the case, which I indicated earlier. Therefore, the finding arrived on by the lower appellate court on the basis of the misconception of law and on erroneous consideration are liable to be set aside and according by the order of acquittal recorded by the court below is liable to be set aside and I do so and consequently the findings and order of conviction recorded by the trail court is restored. 11. In the result, this appeal is allowed, setting aside the judgment dated 24.01.2009 in Crl.Appeal No.615/2006 of the court of Addl. Sessions Court–II, Thiruvananthapuram and restoring the order of conviction ordered by the trial court as per its judgment dated 31.05.2006 in C.C No.214/2005. 12. As I indicated earlier, though notice was ordered and received by the accused, he has not chosen to defend the appeal. However, in the decision reported in Damodar S. Prabhu V. Sayed Babalal H. (JT 2010 (4) SC 457) the apex court has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over Crl.Appeal. No. 1470/2009 9 the punitive aspects. Considering the above settled legal position and on considering the facts and circumstances involved in the above case, I am of the view that the sentence ordered by the trial court can be modified and reduced. Accordingly, the sentence of imprisonment reduced to one day simple imprisonment, i.e, till the raising of the court and the respondent/accused is directed to pay a compensation of Rs.60,000/-(Rupees Sixty thousand only) to the complainant u/s.357(3) of Cr.P.C, within 3 months from today and in case of default in paying the amount within the above time limit, the accused is directed to undergo simple imprisonment for a period of 2 months as ordered by the trial court. The registry is directed to send the records of the case forth with to the trial court for further proceedings. Criminal appeal is allowed to the above extent. V.K. MOHANAN, JUDGE. ss/. Crl.Appeal. No. 1470/2009 10