IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 CRL.A.No. 426 of 2003(A) ------------------------ CC.111/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- K.K.DEVADASAN, PROPRIETOR, 'RAGHAM' STORES, JAIL ROAD, KOZHIKODE, RESIDING AT KARATTU KUNNUMMEL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE. BY ADVS. SRI.THOMAS ANTONY, SRI.K.M.JAMALUDHEEN, SRI.M.P.PRAKASH. RESPONDENT(S): ACCUSED: ------------------------------------------- 1. K.MADHU PRASAD S/O. SREEDHARAN, 'SREYAS', PERUVAYAL P.O., CALICUT-673 024. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.K.VINOD CHANDRAN R2 BY PUBLIC PROSECUTOR SRI. ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.426 of 2003 ----------------------------- Dated this the 22nd day of August 2011 J U D G M E N T The complainant is the appellant. His complaint was under Sec.138 of the N.I.Act. The accused was acquitted by the learned Magistrate under Sec.255(1) Cr.P.C. The case of the complainant is that he had lent Rs.55,000/- to the accused on 25.2.2001 and to discharge that debt Ext.P1 cheque was issued which on presentment was bounced on the ground of insufficiency of fund. On receipt of the memo from the bank notice under the proviso (b) to Sec.138 of the N.I.Act was sent. It was acknowledged by the respondent but no reply was sent nor the amount mentioned in Ext.P1 was paid. Hence the complaint was filed. 2. Complainant got himself examined as PW1 and Exts.P1 to P8 were marked. The accused got himself examined as DW1 and Ext.D1 was marked. Crl.A.No.426 of 2003 -: 2 :- 3. The learned Magistrate found that Ext.P1 was issued by the accused in discharge of a legally enforceable debt. But the accused was acquitted on the reason that no evidence was adduced by the complainant to prove that Ext.P1 was dishonoured on the reason of insufficiency of fund. 4. The learned counsel for the appellant would submit that Ext.P5 dishonour memo issued by the bank itself would show that the cheque was dishonoured on the ground of insufficiency of fund. That was not challenged by the accused also. Besides he himself admitted as DW1 that there was no sufficient amount standing to the credit of his account to honour Ext.P1 cheque. Hence the finding so entered by the learned Magistrate liable to be set aside. 5. The crucial question for consideration is whether Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt. According to the accused he had borrowed only Rs.10,000/- from PW1 in connection with the Crl.A.No.426 of 2003 -: 3 :- marriage of his sister and that a sum of Rs.6,000/- being the interest for five months (at the rate of Rs.1,200/- per month) was paid but no receipt was issued by the complainant. He further swears that on receipt of the statutory notice Rs.6,000/- was again paid by him. To prove the plea of partial discharge put forward by the accused no evidence worth convincing was produced by him. The learned counsel for the accused would submit that PW1 is conducting business and admittedly the factum of lending of this money to the accused was not shown in his account. Apart from Ext.P1 no other documentary or oral evidence was adduced by the complainant to prove that a sum of Rs.55,000/- was borrowed by the accused. The learned counsel has also relied upon the decision in Bhaskaran Nair v. Mohanan [2009 (3) KLT 580] in support of his submission that being a business man, if he had lent more than Rs.20,000/- then it should have been by cheque or draft and since there is no other document to show that Crl.A.No.426 of 2003 -: 4 :- more than Rs.20,000/- was lent to the accused, the case put forward by the accused can be accepted as true. This submission made by the learned counsel for the accused is resisted by the learned counsel for the complainant who would submit that PW1 is an Ex-service man and that there is evidence to show that he had obtained a sum of Rs.1,00,000/- prior to the date of lending and as such there is acceptable evidence to show the source of income so as to pay Rs.55,000/- to the accused. Even if that version is acceptable that would only prove the source of income of the complainant but not the factum of lending of Rs.55,000/- to the accused. 6. Having considered the rival contentions advanced by both sides, it is found that execution of Ext.P1 as such was not in serious dispute. The accused admitted his signature. Besides he also says that he had written his name on Ext.P1. There was no reason why he did not write the amount and the date on Ext.P1. Even if it is true that Crl.A.No.426 of 2003 -: 5 :- the money actually lent was not Rs.55,000/- as contended by the complainant the fact remains that there is evidence of execution of Ext.P1. So much so, the presumption under Sec.139 of the N.I.Act can certainly be drawn in favour of the complainant in this case. On a careful analysis of the evidence, I do concur with the view taken by the learned Magistrate that Ext.P1 was issued by the accused in discharge of a legally enforceable debt or liability. Since all the statutory formalities are seen complied with the accused/respondent is liable to be convicted for the offence under Sec.138 of the N.I.Act. In the result, this appeal is allowed. The accused/respondent is found guilty of the offence punishable under Sec.138 of the N.I.Act and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs.40,000/- as compensation to the complainant and in default of payment of the same, the accused will undergo S.I. for two months. Crl.A.No.426 of 2003 -: 6 :- The accused/respondent will appear before J.F.C.M.-II (Mobile), Kozhikode on 28.10.2011 to pay the compensation and to undergo imprisonment till the rising of the court. N.K.BALAKRISHNAN, JUDGE. Jvt