IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 CRL.A.No. 1098 of 2001 ------------------------ ST.4775/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... APPELLANT/PETITIONER/COMPLAINANT: ---------------------------------------------------------- A.S. BIJU, S/O.SADASIVAN, EDAKKARA AMSOM, EDAKKARA P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENTS/RESPONDENTS/ACCUSED & STATE: ------------------------------------------------------------------------ 1. DEVAYANI, U.D. CLERK, DISTRICT PROBATION OFFICE, MANJERI, MANJERI P.O., MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.M.SATHYANATHA MENON. R2 BY PUBLIC PROSECUTOR, SRI.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1098 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of April, 2008. Judgment This appeal against acquittal is at the instance of thecomplainant in a prosecution under section 138 of the Negotiable Instruments Act. The trial court acquitted respondent No.1/accused holding that the complainant had failed to prove that Ext.P1 cheque was issued by the accused in discharge of a debt or liability or that it had been dishonoured due to insufficiency of funds in the account of the accused. Further, no evidence was adduced to show that the complainant had complied with all the statutory formalities before launching the prosecution. 2. The case of the complainant before the trial court was that the accused had borrowed Rs.40,000/- from him on June 3, 1998. The accused issued Ext.P1 cheque in discharge of the said liability. But when the cheque was presented for encashment it was dishonoured due to insufficiency of funds in the account of the accused,. The statutory demand notice did not evoke any response. Hence the complaint. Crl.A.1098/2001. 2 3. The complainant was examined as Pw.1 and Exts.P1 to P7 were marked on his side. Dws.1 and 2 were examined and Exts.D1 to D7 were marked on the side of the defence. 4. The defence set up by the accused was that she had not borrowed the money as alleged by the complainant. In fact she had borrowed a sum of Rs.5,000/- from one Viswanathan who was an employee of Karulayi Co-operative Bank. At the time of borrowal she had handed over a blank signed cheque as security to Viswanathan. It was further contended by the accused that she had paid back the entire amount borrowed by her from Viswanathan. But Viswanathan had not returned the blank cheque to her. According to the accused the said blank cheque issued to Viswanathan was misused by the complainant to launch the prosecution against her. The accused had a further case that she had no acquaintance with the complainant. She denied the case of the complainant that he had got acquainted with her through her son Prakasan. But she admitted that her son was the classmate of the complainant in the ITC at Manjeri. 5. The accused, when she was examined as Dw.1, had admitted that a few cases were pending against her and her son (Dw.2) before various courts. No attempt was made by her to explain as to how the Crl.A.1098/2001. 3 blank signed cheque issued by her to Viswanathan happened to come in the possession of the complainant. Significantly Mr.Viswanathan was not examined before the court. 6. The case of the accused was that he had borrowed a sum of Rs.5,000/- from Viswanathan and handed over Ext.P1 cheque to him as security. According to her she had paid Rs.15,000/- in discharge of the said debt. But the blank cheque was not returned by Mr.Viswanathan on the ground that some more interest was liable to be paid by the accused. In short, the examination of the accused herself as Dw.1 did not in any way advance her case. Dw.2 the son of the accused stated that during 1996-97 he was studying for Pre-degree in New Arts College at Areakode. He further stated that the complainant was not his classmate in the ITC course at Manjeri. Exts.1 to D7 were marked through this witness which according to him would establish that during 1997-98 he was studying for Pre-degree. 7. In this context it may be noticed that the case of the complainant was that during 1997-98 he and Dw.2 the son of the accused were class mates in the ITC at Manjeri. It was to disprove this contention that Dw.2 had pressed into service Exts.D1 to D7. But a perusal of Ext.D2 will show that petitioner had appeared for the first Crl.A.1098/2001. 4 year Pre-degree examination in April 1996 for some of the subjects, which means that he ought to have joined the first year Pre Degree in the year 1995. Ext.D1 shows that he had passed Accountancy paper in the Pre- Degree examination held in September 1998. Ext.D3 which is a photocopy of yet another marklist for the first year Pre-Degree examination will show that he had appeared for English, Business Studies and Accountancy papers in September 1997. Ext.D4 reveals that he had appeared for the first year Pre-Degree examination for Part A English in April 1998. Ext.D5 reveals that DW.2 had appeared for English, Malayalam, Economics, Business Studies and Accountancy for the Second Year Pre-Degree Examination held in April 1997. Ext.D6 also reveals that he had passed English paper in the second year Pre-Degree Examination held in September 1997. He obtained only 11 marks in Accountancy in the said examination. Therefore Exts.D1 to D6 will show that Dw.2 had not been studying for ITC during 1997- 98. But it is beyond controversy that the qualifying examination to join ITC course is only a pass in SSLC. Ext.D7 will show that DW.2 had obtained provisional National Trade Certificate in the trade of Forger and Heat Treater after undergoing training from August 1999 to July 2000. In short, the documents produced on behalf of the Crl.A.1098/2001. 5 accused did not in any way substantiate the contention raised by them that DW.2 could not have been a classmate of the complainant during 1997-98. 8. Ext.P1 admittedly contained the signature of the accused. She had not denied her signature in the cheque at all. Though it was contended by her that Ext.P1 cheque was the one which he had issued to one Prakasan, there was no evidence in support of the said contention. The complainant had in my view satisfactorily established his case and therefore there was sufficient evidence to hold the accused guilty. In that view of the matter I have no hesitation to set aside the order of acquittal passed by the court below. I do so. The accused is found guilty. She is accordingly convicted and sentenced to undergo simple imprisonment for one year . 9. Appeal is allowed. Respondent No.1/accused shall appear before the trial court to receive the sentence on August 16, 2008. A.K. Basheer Judge. an.