IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 CRL.A.No. 1554 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.349/2003 Dated 29/08/2003 CC.721/1999 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... APPELLANT/COMPLAINANT: ------------------------------------------ THANKACHAN, KUDILIPARAMBIL HOUSE PALA P.O., KIZHTHADIYOOR. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENTS/ACCUSED & STATE: -------------------------------------------------- 1. JOSE JOSEPH, THAIMURIYIL HOUSE PALA P.O., KIZHTHADIYOOR, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BIJU GEORGE FOR R1 R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON 21/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1554 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 721 of 1999 on the file of the Judicial First Class Magistrate Court, Pala. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. The first respondent borrowed a sum of Rs. 75,000/- from the appellant and in discharge of the said amount he issued a cheque for Rs.75,000/- dt.11.11.1998 drawn on the Meenachil Taluk Co-operative Employees Society Ltd., Pala branch. The first respondent made him believe that he was having sufficient amount in his account to honour the cheque. The appellant presented the cheque for incashment, but it was dishonoured Crl.A. No. 1554 of 2003 2 due to insufficiency of funds in the account of the accused. The complainant sent a registered lawyer notice to the accused on 20.1.1999 intimating the dishonour of the cheque and demanding back the amount. Even after receipt of the notice, the accused did not repay any amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the defence side, DW1was examined and Exts.D1 to D4 were marked. The learned Magistrate, on considering the evidence, found that the accused has substantially rebutted the presumption under Section 139 of the N.I. Act and he was found not guilty and acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. At the time of argument, learned counsel for the appellant raised the following contentions. The court below ought to have held Crl.A. No. 1554 of 2003 3 that the accused had conceded that Ext.P1 cheque was drawn on the cheque leaf issued to him by the bank. The court below ought to have held that the accused had admitted his signature in Ext.P1 and the complainant has no case that all the other entries in Ext.P1 cheque were made by the accused. PW1 had stated that the accused handed over Ext.P1 cheque after filling up the same and the signature was put in his presence. The defence set up by the accused is totally contradictory in nature and the story put forward by him is totally improbable. 6. The court below failed to note that the civil case in respect of the cheque was ended in dismissal and the learned Munsiff has entered a finding that there was no adequate consideration. The learned counsel for the appellant submitted that Ext.D1 judgment is reversed in appeal filed by the complainant as A.S. 85 of 2001 before the Sub Court, Pala and that E.P. is pending in execution of the decree. The learned counsel for the first respondent supported the judgment of the court below. Crl.A. No. 1554 of 2003 4 7. When the accused was questioned under Section 313 Cr.P.C., his case is that the complainant is having a finance company and the complainant requested the accused to give a loan of Rs.10,000/- for the purpose of doing repair works to the autorikshaw of the complainant and when the accused told him that he has no money with him, the complainant asked the accused for a blank cheque and as the complainant is the uncle of the accused he gave a blank signed cheque and that blank cheque was misused by the complainant for filing the complaint. 8. The accused was examined as DW1. To substantiate his case DW1 deposed that the complainant asked for a loan of Rs.18,000/- for repairing the autorikshaw belonging to the complainant and when the accused told him that he has no money, the complainant asked the accused to give a blank cheque for availing a loan from some finance company and that by misusing that cheque the complainant filed this complaint. DW1 deposed that after the dishonour of the cheque, the complainant sent him two lawyer notices as Ext.D3 dt.20.1.1999 and Crl.A. No. 1554 of 2003 5 Ext.D4 dt.18.1.1999 and that the present complaint is based on notice dt.20.1.1999. 9. In cross examination DW1 submits that his actual name is Jose Joseph and the first notice is sent in the name Joseph Jose. Since the first notice was issued in the wrong name, the complaint filed on the basis of the second notice issued in the correct name is legally valid. The accused has not issued any reply to the notice issued by the complainant. At one stretch the accused stated that the complainant is a money lender and at another stretch he said that the complainant is not in a position to arrange Rs.18,000/- for repairing the autorikshaw driven by him. The story put forward by the accused that the complainant asked him a sum of Rs.18,000/- and further insisted for blank cheque to avail loan from some finance company is totally contradictory and highly improbable and therefore it is unreliable. 10. The complainant was examined as PW1. He deposed that the accused is his nephew and on 11.11.1998 the accused borrowed Rs.75,000/- from him and when he demanded back that amount the Crl.A. No. 1554 of 2003 6 accused issued Ext.P1 chque dt.11.11.1998 for that amount. When Ext.P1 was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. PW1 sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. Ext.P2 is the dishonour memo. Ext.P3 is the copy of the lawyer notice, Ext.P4 is the postal receipt and Ext.P5 is the postal acknowledgment. In cross examination PW1 deposed that the accused brought Ext.P1 filled up cheque and the accused signed that cheque in his presence. On appreciating the testimony of PW1 in the light of the defence case, I am of the view that the accused executed Ext.P1 cheque in favour of the complainant. Since execution of Ext.P1 cheque is proved, the presumption under Sections 118 and 139 of the Act would apply and it is for the accused to rebut that presumption. But the evidence adduced from the side of the accused is not sufficient to rebut that presumption. 11. Since the complainant has proved all the essential elements of the offence under Section 138 of the N.I. Act, the learned Crl.A. No. 1554 of 2003 7 Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the Act he is convicted for that offence. 12. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.75,000/- would meet the ends of justice. 13. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 721 of 1999 on the file of the Judicial First Class Magistrate, Pala is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.75,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. Crl.A. No. 1554 of 2003 8 The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within three months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid period, he shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm