IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 CRL.A.No.255 of 2002(A) ----------------------------- CC.738/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR. .................... APPELLANT: COMPLAINANT ---------------------- K.V.NARAYANAN, AGED 44 YEARS, S/O.AMBU, KUNDU VALAPPIL P.O., KANKOLA,(VIA) PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENTS: ACCUSED ------------------------------ 1. M.M.RAGHAVAN, AGED 27 YEARS, S/O.KELU NAIR, MAVILA MOORKKAN HOUSE,ALAKKAD, P.O.KANKOLA,(VIA) PAYYANNUR,KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.C.P.PEETHAMBARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No. 255 of 2002 ------------------------------------------------ Dated this the 31st day of January, 2008 JUDGMENT This is appeal filed by the complainant in C.C.738/96 on the file of the Judicial First Class Magistrate's Court, Payyannur assailing the order of acquittal of the first respondent of an offence punishable under Section 138 of the N.I. Act vide judgment impugned. 2. The appellant filed complaint in the court below complaining of commission by the first respondent of an offence punishable under Section 138 of the N.I. Act alleging inter alia that the accused borrowed and amount of Rs.16,000/- from him on 31/05/95 promising to return it on 30/06/96; that on 30/06/96, the first respondent approached him and requested time till 30/07/96 to make repayment of the amount and he issued Ext.P1 cheque dt.30/07/96 drawn on the Kankole branch Crl. Appeal No. 255 of 2002 -2- of Payyannur Service co-operative Bank for an amount of Rs.16,000/-; that on presentation of the cheque on 31/07/96 it was dishonoured by the drawee bank under Ext.P2 memorandum assigning the reason “funds insufficient”; that thereupon the original of Ext.P3 notice dt.13/08/96 was caused to be issued to the first respondent under Ext.P3(b) postal registration receipt intimating him of the dishonour of the cheque and demanding payment of the amount covered by the cheque that the said notice was received by the first respondent on 19/08/96 under Ext.P3(a) postal acknowledgment card but he has not paid up the amount covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act. On appearance of the first respondent Crl. Appeal No. 255 of 2002 -3- pursuant to receipt of summons, the learned Magistrate read over the particulars of the offence and explained it to him and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. 4. On the side of the complainant, the complainant tendered evidence as PW1 and got marked Exts.P1 to P4. On the complainant closing his evidence the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, the cheque is one issued to the appellant who was one of the mediators by way of amounts payable to the daughters of Chandukutty consequent on the dropping of love affair between him and a daughter of the said Chandukutty at the instance of the Marxist Communist Party; that Crl. Appeal No. 255 of 2002 -4- the amount is actually paid to the appellant but he did not return the cheque; that therefore, he issued Ext.D1 notice to the appellant for return of the cheque as also to the daughters of Chandukutty; and that the present complaint is filed misusing the cheque which had not been returned by the appellant while receiving Rs.16,000/- which has to be paid over by him to the daughters of Chandukutty. On the defence side DW1 is examined. 5. The court below considered the rival claim and contentions in the light of the evidence adduced as above; found that Ext.P1 cheque is not supported by any consideration and is not one issued in discharge of debt or other liability and consequently, acquitted the first respondent under Section 255(1) Cr.P.C of the offence under Section 138 of the N.I. Act. Hence, this appeal by the aggrieved appellant. Crl. Appeal No. 255 of 2002 -5- 6. It is vehemently contended before me by the learned counsel for the appellant that the first respondent made all attempts in the court below by setting up contentions which has caused confusion in the mind of the learned Magistrate which resulted in the acquittal of the first respondent; that the court below has made reference to a document as Ext.D2 which actually had been refused to be marked when it was attempted to be marked during the examination of DW1 and that the court below has arrived at a wrong conclusion that the cheque was not supported by consideration and that the order of acquittal assailed deserves to be set aside and the first respondent convicted for offence under Section 138 of the N.I. Act. 7. The appellant as PW1 has given evidence that the first respondent asked for a loan of Rs.16,000/- which he advanced on 31/07/95, that it was agreed by the first Crl. Appeal No. 255 of 2002 -6- respondent that the amount would be returned on 30/06/96 and that on 30/06/96 the first respondent approached him and asked for further time up to 30/07/96 and issued him Ext.P1 cheque for Rs.16,000/-; and that on presentation it was dishonoured by the drawee bank. Though it is stated by the first respondent when questioned under Section 313 Cr.P.C that the appellant was Branch Secretary of C.P.M at Kannur, the suggestion made to him in cross examination is not to that effect and PW1 has stated that he is not at all a party worker at any point of time. No doubt he has admitted in cross examination that after two - three months of advancing the loan he asked for return of the amount and then the first respondent told him that it would be returned on 30/06/96. 8. It is contended by the counsel for the first respondent that if at all the loan was availed of on agreement that it will be Crl. Appeal No. 255 of 2002 -7- returned on 30/06/96. The appellant had no reason to ask for return of the amount on expiry of two - three months from 31/07/95. A person who advances amount if needs cash for any purpose whatsoever, he may ask for return of the cash from his debtor and there is no improbability in having advanced any such demand. In cross examination PW1 was asked as to whether an agreement had not been got executed in his name from the first respondent in his status as mediator, for amounts received by the first respondent from the daughter of Chandukutty Nambiar and he has emphatically denied it. The suggestion that he was being entrusted with Ext.P1 cheque in his capacity as mediator is also denied by him. A further question was again put to PW1 as to whether the transaction which was the subject matter of an agreement was not between the first respondent and Chandukutty Nambiar and that he had no connection at all with him to Crl. Appeal No. 255 of 2002 -8- which he has answered that the cheque was one that was issued to him. It is worthy to note that no suggestion was made to the appellant/ PW1 in cross examination suggesting that the first respondent has paid Rs.16,000/- to him as is contended by the first respondent. 9. DW1 is a document writer examined by the first respondent to substantiate his case and attempt was made to prove the photostat copy of an agreement through DW1. The marking of the photostat copy was opposed and that was not allowed to be marked. The evidence of DW1 goes to show that his evidence regarding his writing an agreement which is original of the photostat copy attempted to be got marked is not true; and that in any event he has pleaded ignorance as to whether the appellant had come over to his office at all. If the appellant had not gone over to his office there is no question of DW1 proving the agreement alleged to be executed by the first respondent as Crl. Appeal No. 255 of 2002 -9- suggested by him. 10. It is vehemently contended before me by the learned counsel for the first respondent that even before issuance of Ext.P3 notice Ext.D1 notice had been issued and it is thereafter that immediately Ext.P1 cheque was presented; got dishonoured and the present complaint filed. In Ext.D1 notice which is seen issued on 20/07/96 it is seen stated that the property of the first respondent was sold to one Janaki teacher on 01/11/95 in the presence of party men including the appellant, and in the presence of all of them he paid Rs.11,000/- in cash to the appellant and the balance Rs.5,000/- was paid to the appellant through the said Janaki teacher. The said Janaki teacher is not cited or examined as a witness. The said Ext.D1 notice was however, not delivered and the endorsement shows that it was being refused and was being returned to the sender. However, Ext.D1 is dt.20/07/96 and Crl. Appeal No. 255 of 2002 -10- that is after issuance of Ext.P1 cheque on 30/06/96 post dating it with date 30/07/96. This shows the ingenious attempt on the part of the first respondent to avoid making payment of the amounts covered by Ext.P1 cheque. The case of the appellant that he advanced Rs.16,000/- to the first respondent and in discharge of the said debt was Ext.P1 cheque was being issued stands established in the circumstances and the court below went wrong in holding that Ext.P1 cheque is not issued in discharge of any debt or other liability when the defence had miserably failed to rebut the presumption available in favour of the appellant/the payee and holder of Ext.P1 cheque under Section 139 of the N.I. Act. Hence, reversing the order of acquittal of the first respondent I find that the first respondent is guilty of the offence punishable under Section 138 of the N.I. Act, as the first respondent has no case that all Crl. Appeal No. 255 of 2002 -11- statutory formalities required for the maintainability of a complaint under Section 138 of the N.I. Act do not stand complied with in the instant case or that the cheque was being dishonoured not for reason of insufficiency of funds in his account to honour Ext.P1 cheque. Consequently, I convict the appellant of offence under Section 138 of the N.I. Act. For questioning the first respondent regarding the sentence post on 08/02/08. K.P.BALACHANDRAN, JUDGE kns/- Counsel for the first respondent submits that the first respondent has not turned up. In the result, I dispense with questioning the first respondent and sentence him to undergo simple imprisonment for one year and direct him to pay an amount of Rs.20,000/- by way of compensation to the appellant. Communicate the judgment to the court below forthwith to have the sentence enforced against the first respondent. Sd/- K.P.BALACHANDRAN, Judge. 08/02/08 //True Copy// P.A. to Judge Crl. Appeal No. 255 of 2002 -12-