IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.A.No. 973 of 2002() -------------------------------- ST.301/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S)/PETITIONER / COMPLAINANT ------------------------- P.P.VARGHESE, PLAKKAL HOUSE, KATTUNGANCHIRA, IRINJALAKUDA. BY ADVS. MR.T.N.MANOJ MR.DINESH R.SHENOY RESPONDENT(S): ACCUSED ---------------------- 1. VARGHESE K.A., KITTIKKAL HOUSE, CHEMMANDA, KARALAM P.O. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. MR.RAJESH CHAKYAT FOR R1 BY PUBLIC PROSECUTOR MR. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.973 OF 2002 ------------------------------ Dated this the 1st day of June, 2009 JUDGMENT This appeal is preferred against the order of acquittal passed by the J.F.C.M, Irinjalakuda in S.T.No.301/1999. It is the case of the complainant that the accused had borrowed a sum of Rs.10,000/= and towards the discharge of the liability, had issued a cheque, which when presented for encashment, returned with the endorsement of insufficiency of funds. Thereafter, a statutory notice was issued which was not replied, prosecution was launched. 2. The case of the defence appears to be that there is no transaction between the accused and the complainant and only it is given as a security for the transaction of his brother- in-law. It has to be stated that there is change over in the subject at the time of argument. The trial court on analysis of the materials held that PW1 had deposed before the court that there was a loan of Rs.15,000/= and Rs.10,000/= was issued as a cheque towards the discharge of the liability 2 CRL.A.NO.973/02 and therefore, what is stated in the complaint and in the evidence is not co-relative. The court also found that DW1 had deposed before the court that there was a transaction between the accused and the complainant and that the cheque was issued and the cheque amount was paid but the cheque was not returned and so the case of the complainant cannot be accepted. These two points were accepted by the court and the accused was acquitted. 3. I am totally conscious of the fact that in a criminal prosecution, the burden is on the complainant to prove the alleged guilt. But in a Section 138 case, it has been held that when an accused who is not bound to let in evidence adduces evidence that also can be looked into to decide preponderance of probability to find out which is the truth. That is what precisely I want to do in this case. It is true that the complainant had deposed before the court that an amount of Rs.15,000/= was advanced and a cheque was issued later for Rs.10,000/- which is against the pleaded case. What is pleaded is Rs.10,000/= was advanced and it was not returned. 3 CRL.A.NO.973/02 So far as a case under Section 138 of the N.I. Act is concerned, the court has to find out whether the negotiable instrument issued represents the discharge of the liability which is due from the accused to the complainant. The complainant was pin pointedly cross examined and the definite case put to the complainant was to the effect that the cheque was issued in a transaction between the complainant and the brother-in-law of the accused namely Varghese Manjooran or in other words the accused has nothing to do with the complaint regarding any monetary transaction. This Varghese Manjooran, who is none other than the brother-in-law of the accused, was examined as DW1. It is submitted that there were some connection between the complainant and him and he has pin pointedly stated that the accused had borrowed a sum of Rs.10,000/= in the month of March, 1996 and had re-paid the amount in 1997 and therefore there is no amount due from the accused to the complainant. This is totally against the suggested case of the complainant. When he was in the box, the accused cannot pretend total 4 CRL.A.NO.973/02 ignorance. So, in this backdrop one has to analyse the evidence. PW1 had deposed before the court regarding the issuance of the cheque. He had deposed that the cheque was brought to him written and it was signed. Nothing has been elicited to suggest a false case. The evidence tendered by DW1 is contrary to what is suggested to PW1 at the time of his evidence. Understanding this difficulty, the accused changed over his case when he was examined under Section 313 in order to make it fit with the evidence of DW1. That cannot be appreciated. 4. Therefore from the materials also, I hold that the court below has erred in arriving at a decision regarding the offence under Section 138. I find that the accused had issued the cheque towards the discharge of the liability which when presented. got dishonoured. Inspite of notice, no reply was sent. It is also an additional factor. Therefore, I find that the accused is guilty under Section 138 of the N.I.Act. 5. Now the next question to be considered is regarding sentence. The transaction is of the year 1998 and if he really 5 CRL.A.NO.973/02 wants to pay the amount, I do not want to send him to jail. Therefore, the Crl.A. is disposed of as follows: 1. The judgment of the trial court is set aside. 2. The accused is found guilty under Section 138 of the N.I.Act. 3. The accused is convicted and sentenced to pay a fine of Rs.10,000/= which on realisation shall be disbursed to the complainant. In case of default, the accused has to undergo S.I for a period of one month. The accused shall pay the amount on or before 16.8.2009 failing which the court below shall execute the sentence. The Crl.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE CL 6 CRL.A.NO.973/02 beat