IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 CRL.A.No. 104 of 2003() ---------------------------------- ST.2193/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT(S): COMPLAINANT -------------------------------------------- BINCY K.KOCHUNNY, W/O. KOCHUNNY KOLLANOOR HOUSE, P.O.KANIPPAYYUR, KUNNAMKULAM. BY ADV. SRI.RAJIT RESPONDENT(S): ACCUSED ------------------------------------------- 1. SASIKUMAR, S/O. VALLASSERY SURESH CHANDAN, KARAKKAD DESOM GURUVAYOOR AMSOM, CHAVAKKAD TALUK 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.M.B.PRAJITH R2 BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K. Hema, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 104 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008 JUDGMENT This appeal arise from an order of acquittal of the 1st respondent who was prosecuted for offence under section 138 of the Negotiable Instruments Act. The complainant is the appellant herein. 2. The complaint was filed on the allegation that the 1st respondent borrowed an amount of Rs.50,000/- from the appellant on 25-10-1998 assuring to repay the amount on demand. When the demands were made, he issued Ext.P2 cheque towards discharge of the said debt. The cheque, on presentation, was dishonoured for the reason “funds insufficient” Thereafter registered lawyer's notice was sent calling upon the 1st respondent to repay the amount. He did not repay the amount, though notice was received. Hence, the complaint was filed after complying all the formalities under the provisions of the Act. Crl.A.104/03 -2- 3. PW1 was examined and Exts.P1 to P6 were marked on the side of the prosecution as seen from the judgment. It is pointed out that another document Ext.P7 was also marked by the court below, though it is omitted to be mentioned in the judgment. The 1st respondent took up a contention that he did not borrow any amount from the appellant and that he had no acquaintance with the appellant and they are total strangers. It is also contended that when his cheque book was lost, he intimated the Bank Manager about the same and on his advice a stop memo was issued. It is further contended that the cheque was misused by the appellant. No evidence was adduced on the side of the defence. The appellant has a case that Ext.P2 cheque was issued when the amount was borrowed in ensuring repayment. 4. The trial court found that the 1st respondent did not deny the signature in Ext.P2 cheque or in the promissory note Ext.P1. It is held as follows:- “Anyway he is not at all disputing his signature Crl.A.104/03 -3- in Ext.P1 and P2. Then the presumption under section 139 of N.I. Act will come into operation. The burden is upon the accused to rebut this presumption. But the accused did not adduce any evidence to rebut this presumption. So the only possible conclusion that can be arrived is that Ext.P2 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. Point answered in favour of the complainant.” The trial court also found that the mandatory provision contained under section 138(b) of the Act was not complied with and no notice was issued within 15 days of receipt of intimation. The intimation is marked as Ext.P3. Lawyer notice Ext.P4 is dated 6-3-1999, which is beyond the period of 15 days. 5. Learned counsel for the appellant strongly contended that the notice was issued within the stipulated time. This is evidenced by Ext.P7 extract from the cheque collection register maintained in the bank as per which the cheque was returned on 19-2-1999 and it was received in the bank of the appellant on the said date. Therefore, the appellant issued lawyer notice demanding payment on 6-3- Crl.A.104/03 -4- 1999 within 15 days of receipt of the dishonoured memo. The finding that there is no compliance of section 138(b) of the Act is illegal and the acquittal is also illegal, it is strongly contended by the appellant. 6. The learned counsel for the 1st respondent argued that the marking of Ext.P7 was not within the knowledge of the 1st respondent. No witness was confronted with Ext.P7 and it is not understood under what circumstances the document was marked. Resultantly, it is argued that the 1st respondent has lost an opportunity to cross-examine the relevant witness relating to the same and hence prejudice is caused to the 1st respondent. It is also pointed out that the court below has not taken into account Ext.P7. It is true that in the judgment Ext.P7 is not referred to. It is also not clear under what circumstances Ext.P7 was marked. 7. Whether Ext.P7 was marked on consent or not is also not clear from the records. However, fact remains that may be, there is some evidence relating to the receipt and dishonour memo by the appellant. It was submitted by the Crl.A.104/03 -5- learned counsel for the appellant that the said document Ext.P7 was caused to be produced before the court on filing an application for the same. It was produced by the bank on issuance of summons. Therefore, the appellant must be given an opportunity to prove Ext.P7 in accordance with law, failing which, serious prejudice will be caused to the appellant, it is submitted. 8. On hearing both sides and going through the records, I find that trial court has entered a finding that on proof of signature in the cheque, execution of the cheque is proved. Therefore, the court below was of the opinion that presumption under section 139 of the Negotiable Instruments Act can be drawn. The trial court has not considered whether the cheque was drawn by the accused in the right perspective. Merely on admission of signature in cheque, court cannot jump to a conclusion that cheque was drawn. It has also not been looked into and whether prerequisites for drawing presumption under section 139 are established in this case before calling upon the 1st Crl.A.104/03 -6- respondent to rebut the presumption. The presumption can be rebutted only if it arises. 9. In the above circumstances, I find that the impugned order cannot be sustained. The matter requires reconsideration after given both sides an opportunity to adduce evidence in accordance with law. Hence, the order of acquittal is set aside and the case is remanded to the trial court for fresh consideration and disposal in accordance with law. The trial court is directed to reconsider the matter after given an opportunity to both sides to adduce evidence. The parties shall appear before the trial court on receipt of notice to their respective counsel from trial court. The appeal is allowed as above. K. Hema, Judge. mn.