IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRL.A.No. 1319 of 2003() ----------------------------------- CRA.A NO.181/2001 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC-I) KOTTAYAM. C.C. NO.442/2000 OF JUDICIAL FIRST CLASS MAGISTRATE -III, KOTTAYAM ......... APPELLANT(S): 1ST RESPONDENT/COMPLAINANT ---------------------------------------- E.M.JAMES, KIZHAKKEVALALAYIL, PERUMTHURUTHU P.O., KALLARA. BY ADV. SRI.P.RAVINDRA BABU RESPONDENT(S): APPELLANT/ACCUSED & STATE OF KERALA ---------------------------- 1. RAJAN NAIR, THENGUMTHARAYIL, NAGAMPADOM, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1319 OF 2003 = = = = = = = = = = = = = = = Dated this the 16th day of July, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in Crl.Appeal 181/01 of the Addl. Sessions Judge, Adhoc-I, Kottayam. The brief facts would reveal that it is the case of the complainant that he had advanced a loan of Rs.1,50,000/- to the accused and towards the discharge of the liability the accused had issued three cheques for Rs.1,15,000/-, Rs.20,000/- and Rs.15,000/- respectively with different dates out of which when the first two cheques were presented for encashment it returned with the endorsement of insufficiency of funds and thereafter a notice was issued for which no reply was sent and action initiated thereafter under S.138 of the Negotiable Instruments Act. 2. The case of the defence appears to be not very specific but suggest that he had taken a loan of Rs.1,50,000/- from the complainant and at that time had issued some blank Crl.A. 1319 OF 2003 -2- signed cheques as security which had been utilized by the complainant to file a false case. In the trial court PW1 was examined and Exts.P1 to P8 were marked. There was no defence evidence. The trial court found the case in favour of the complainant and sentenced the accused to undergo simple imprisonment for a period of six months. It is against that decision the appeal was preferred and the learned appellate judge on reading an isolated sentence from the evidence of PW1 “............................................................................... ........................................” acquitted the accused and it is against that decision the appeal is filed. 3. Heard the learned counsel for the appellant and there is no appearance for the respondent/accused in this case. The learned counsel had taken me through the evidence of Pw1 and the documentary evidence. Exts.P1 and P2 are the two cheques in issue and the other documents are the documents to prove the statutory compliance of the requirement under the provisions of the Act. A reading of PW1's evidence would reveal that he had advanced a loan of Crl.A. 1319 OF 2003 -3- Rs.1,50,000/- and on the same day the accused had issued three cheques with three different dates towards the discharge of the liability and Exts.P1 and P2 are the two cheques which is the subject matter of this case which when presented for encashment returned with the endorsement of insufficiency of funds. The trend of the cross-examination is to the effect that at the time of borrowal of a sum of Rs.50,000/- blank cheques had been taken by the complainant and in the very same move it is stated that there is a police complaint and it was on account of the pressure exercised by the police the three blank signed cheques were issued in favour of the complainant. Anyhow these two contentions cannot go together. The last sentence in the cross-examination does not take us anywhere and I am surprised to see that basing upon that solitary sentence “...................................................................... ..................................................................” The Sessions Court had acquitted the accused. When witnesses tender evidence and the entire evidence is available before Court it is the duty of the Court to read the evidence in toto to arrive at a Crl.A. 1319 OF 2003 -4- decision and not relying upon the solitary sentences here and there to arrive at a decision. Nowhere the accused has got a case that he had discharged the liability. The learned Sessions Judge had erred in giving such a finding. Then the evidence of PW1 would show regarding the advancement of the amount and issuance of cheque and it has not been shattered in cross- examination. The Court has to see whether materials supplied by the prosecution is sufficient to connect the case with the accused. As stated by me earlier the evidence of PW1 is most convincing. The evidence available proves that case of the prosecution regarding execution of the cheque towards the discharge of the liability. Therefore there is a presumption u/s 139 of the N.I. Act and it is for the accused to rebut the presumption which is not done in this case. Therefore I agree with the finding of the trial judge that the accused is punishable u/s 138 of the N.I. Act. 4. Now turning to the question of sentence. I do not want to send the accused to jail if he is interested in making the payment. I think it will be sufficient if he is sentenced to Crl.A. 1319 OF 2003 -5- undergo imprisonment till the raising of the Court and to pay a compensation of Rs.1,35,000/- as compensation u/s 357(3) Cr.P.C. and in default of which he shall undergo simple imprisonment for a period of two months. On realisation of the compensation amount it shall be disbursed to the complainant on proper application. The accused is directed to appear before the Court below on 30.9.2009 for receiving the sentence as well as for payment of compensation and in case of default the Court below is directed to execute the sentence. M.N. KRISHNAN, JUDGE. ul/-