IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRL.A.No. 1126 of 2001() ------------------------ CC.262/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... APPELLANT(S)/COMPLAINANT: -------------------------------------- K.K. VIJAYAKUMAR, S/O SANKARAN, 'VARIJAM', KOKKALLUR AMSOM, KOONANCHERI DESOM, KOYILANDY. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S)/ACCUSED AND STATE: -------------------------------------------- 1. P.M. BALAN, THIRUVANCHERY ILLATH, VATTOLI BAZAR, BALUSSERY, KOYILANDY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1126 OF 2001 = = = = = = = = = = = = = = = Dated this the 25th day of August, 2009. J U D G M E N T This appeal is preferred against the order or acquittal passed by the Judicial First Class Magistrate, Koyilandy in C.C.262/98. It was a case filed u/s 138 of the Negotiable Instruments Act which has ended in acquittal. It is the case of the complainant that the accused had borrowed a sum of Rs.22,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with insufficiency of funds. When a notice was issued a reply raising false contention was sent and thereafter prosecution was initiated. The case of the defence appears to be that he had borrowed a sum of Rs.5,000/- from the complainant and at that time had issued a blank signed cheque as security. According to him he had paid the amount but did not receive back the cheque and the complainant had made use of the said cheque to file a false case of this nature. Crl. Appeal NO. 1126 OF 2001 -2- 2. The court below mainly proceeded on the hand writing in the cheque to determine the case. The court said that the signature itself admittedly that of the accused that his name in the bottom portion is in Malayalam whereas the writing in the cheque is in English and there was no necessity for the accused to ask somebody else to write the body of the cheque and therefore held that the case of the accused appears to be more probable and acceptable. 3. On the contra PW1 had deposed before court that the cheque was brought to him writing and it was signed in his presence. He has no case that the entire cheque was written in his presence by the accused and handed over to him. There is no rule that the body of the cheque should be written by the very same person who sign the cheque. Therefore arrival of the said decision by the court below on this basis alone cannot be said to be correct. 4. Admittedly PW1 was the conductor at the time of the transaction. He had deposed before court that he had Crl. Appeal NO. 1126 OF 2001 -3- advanced the amount from the amount which he is received by way of ........... PW2 has also spoken that he was present when the accused received the amount of Rs.22,000/-. Except for the suggestions there is nothing available before court to arrive at a decision when there was a transaction between the complainant and the accused with respect to Rs.5,000/- and that a cheque had been given to him. Here the complainant has got only one case and that is that he had paid Rs.22,000/- and towards the discharge of the liability a cheque is issued. The evidence of PW2 corroborates the case of PW1. Therefore the finding of the court below that since the accused knows to write in Malayalam his name, assistance of a third person is not necessary to write the body of the cheque cannot be accepted especially for the reason that the complainant has no case that he had filled the cheque and made it for encashment. No evidence is also there in that regard to substantiate such a contention. So I find that the court below had erred in arriving at a decision that the case of the accused Crl. Appeal NO. 1126 OF 2001 -4- appears to be more probable. 5. I have to state now when the matter was taken up for hearing except the photocopy of Ext.P1 cheque, Ext.P1 cheque was not available in the bundle. Therefore the learned counsel for the appellant gave me the photocopy of the cheque which I had perused. Since the court below has rested its finding on that comparison I have directed the Court Officer to keep a photocopy of this cheque for the purpose of completion of the records. Meanwhile steps may be initiated or search may be conducted to find out where exactly Ext.P1 is. 6. In the light of my above finding I find that the accused is guilty and is liable to be convicted u/s 138 of the Negotiable Instruments Act. I do not want to send him to prison if he is prepared to pay the amount and justice can be met by sentencing him to undergo imprisonment till the raising of the Court and to pay a compensation of Rs.22,000/- to the complainant u/s 357(3) Cr.P.C. and in default to Crl. Appeal NO. 1126 OF 2001 -5- undergo simple imprisonment for a period of two months. In the result the Crl.Appeal is disposed of as follows. (1) The order of acquittal is set aside. (2) The accused is found guilty u/s 138 of the Negotiable Instruments Act and is convicted thereunder. (3) He is sentenced to undergo imprisonment till the raising of the Court and to pay a compensation of Rs.22,000/- u/s 357(3) Cr.P.C. which on realization shall be disbursed to the complainant. In case of default he shall undergo two months simple imprisonment. (4) The accused shall appear before the Court below on 1.12.2009 to receive the sentence and pay the compensation, failing which the Court below shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1126 OF 2001 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1126 OF 2001 = = = = = = = = = = = J U D G M E N T 25th August, 2009