IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 CRL.A.No. 409 of 2000(A) ----------------------------------- ST.3117/1997 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ ABDUL MAJEED, S/O. VALAPARAMBIL SAIDU MOHAMMED, KIZHUPPILLIKARA.P.O., THRISSUR DISTRICT. BY ADV. SRI.K.RAVIKUMAR. RESPONDENTS/ ACCUSED AND STATE OF KERALA: --------------------------------------------------------------------------- 1. P.K. SUNIL KUMAR, S/O. PERINGOTHARAYIL KRISHNANKUTTY, MOONNU PEEDIKA, KAIPAMANGALAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V. GIRI, J. ------------------------------- Crl.Appeal.NO. 409/ 2000 --------------------------------- Dated this the 21st day of August, 2008. JUDGMENT The complainant in ST.No.3117/1997 on the files of the JFCM Court, Kodungallur is the appellant herein. The case arose out of a complaint filed by the appellant against the first respondent alleging that the latter has committed an offence under section 138 of the Negotiable Instruments Act. The complainant alleged that the accused had issued Ext.P1 cheque on 31.5.1997 for an amount of Rs.2 lakhs, which sum had actually been borrowed by the accused from the complainant. The cheque when presented for encashment was dishonoured with the endorsement “fund insufficient”. Ext.P4 notice was issued in this regard and this was met with Ext.P5 reply. The amount was not paid and hence the complaint. 2. On receipt of summons the accused appeared before the court and pleaded not guilty. The complainant was examined as PW1 and the Manager of the Bank as PW2. Ext.P1 to P4 were marked. The accused examined himself as DW2 and also CRA..409 /2000 2 examined Dw1, stated to have been the mediator in a mediation conducted at the Nyayalaya between the complainant and the accused in relation to the same transaction. The court below came to the conclusion that Ext.P1 cheque does not seem to be supported by consideration. The court below also held that the accused has been able to rebut the presumption under sections 118 and 139 of the Negotiable Instruments Act, that the cheque in question was given only as a security at the time when the accused borrowed an amount from the complainant along with certain other documents. The accused was therefore acquitted under section 255(1) of the Cr.P.C. The order of acquittal is challenged in the appeal. 3. Inspite of service of notice from this court the accused has not cared to appear in this appeal. It seems that the notice on behalf of the accused was ultimately accepted by the father of the accused who is stated to be staying along with the accused in the same address. 4. I heard learned counsel for the appellant Sri.K.Ravikumar. The case of the complainant is that the accused had borrowed an amount of Rs.2 lakhs and Ext.P1 CRA..409 /2000 3 cheque was issued for discharging the said liability. It is admitted by the accused in Ext.P5 reply notice that he had borrowed an amount of Rs.2 lakhs from the complainant. According to the complainant, Ext.P1 cheque was issued at that point of time. Though the accused admits issuance of Ext.P1 cheque in he sense that he admits the signature contained in Ext.P1, he took up the stand both in the reply notice as also in the course of his statement under section 313 Cr.P.C.and when he was examined as DW2 that the cheque issued by him was a blank one. He contended that the cheque was issued only as security and was not supported by consideration. He further contended that apart from the cheque on the insistence of the complainant he had issued a fixed deposit receipt for an amount of Rs.2 lakhs in the name of Sangameswaram Kuries, of which the accused was admittedly the Managing Director. The stand taken by him in the reply notice is that the complainant had insisted upon such a fixed deposit receipt which evidences a deposit of Rs.2 lakhs by the complainant in Sangameswaram Kuries, of which he is the Managing Director. That as a matter of fact no amount was deposited by the complainant in the said company but the CRA..409 /2000 4 receipt was issued to make it appear that the amount has been deposited. 5. The question as to whether any amount was actually deposited by the complainant in Sangameswaram Kuries, of which the accused is the Managing Director is not a matter of crucial significance in so far the present case is concerned. Admittedly, the complainant had approached the Consumer court in this behalf and it is not very clear as to what ultimately happened to the complaint. DW2 in his cross examination makes mention of the fact that after mediation it was decided that the said complaint will be withdrawn. Copy of the proceedings before the Consumer Court or for that matter the minutes of any mediation which had taken place between the parties at Nyayalaya are not placed on record. As I have mentioned above, the question as to whether the complainant had actually deposited an amount of Rs. 2 lakhs with Sangameswaram Kuries and therefore the fixed deposit receipt stated to have been issued in that behalf was actually suspported by consideration is not a matter of crucial significance in this proceedings. CRA..409 /2000 5 6. It is a matter of significance that the accused admits the receipt of Rs.2 lakhs from the complainant. The accused also admits the signature in Ext.P1 cheque. Obviously therefore the issuance of the cheque is part of the transaction between the complainant and the accused. The accused has raised a contention that an amount of Rs.75,000/- was repaid by him. There is a total dearth of evidence on this aspect. Once therefore it is admitted that the accused has received an amount of Rs.2 lakhs from the complainant and Ext.P1 cheque was issued by the accused as part of the same transaction, then it has to be found that the cheque in question was supported by consideration. Even according to the accused substantial amount under the cheque was still due from the accused to the complainant and he had really sought for time to repay the said amount. This fact is spoken to by DW1 also. In such circumstances, I am of the view that it has to be held that the cheque in question was issued by the accused for the purpose of discharge of a liability which he had incurred with the complainant and therefore it has to be held as supported by consideration. The necessary ingredients under section 138 of CRA..409 /2000 6 the Negotiable Instruments Act have therefore been proved both with the aid of the rebuttable presumption under section 138 of the Negotiable Instruments Act and with the aid of evidence which had been independently adduced by the complainant. In the circumstances, the transaction between the parties stands proved. The receipt of the amount by the accused from the complainant stands admitted. The issuance of the cheque stands admitted. The accused admits the signature in Ext.P1 cheque, though not the entries in their entirety. The inability on the part of the accused to repay the entire amount is also admitted. In my view, no further evidence was actually required or warranted to find that the accused is guilty of the offence under section 138 of the Negotiable instruments Act. The court below has clearly held in entering a finding to the contra. For all these reasons, the appeal is allowed. The order of acquittal is set aside. The accused is found guilty of the offence under section 138 of the Negotiable Instruments Act. In the facts and circumstances of the case, I think it is appropriate that the matter is remitted to the court below for the limited purpose of CRA..409 /2000 7 imposing a suitable sentence on the accused. Accordingly, the case is remanded to the court below for the limited purpose of summoning the accused and imposing on him a suitable punishment for the offence under section 138 of the Negotiable Instruments Act. The parties shall appear before the court below on 13.10.2008. The LCR shall be transmitted back to the court below forthwith. V. GIRI, JUDGE. Pmn/ CRA..409 /2000 8