IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 CRL.A.No.1582 of 2004(B) ------------------------------- AGAINST THE ORDER IN CRL.L.P.289/2004 Dated 24/05/2004 CC.798/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR. .................... APPELLANT: COMPLAINANT: --------------------------------- K.V.INDIRA, W/O. SUKUMARAN, KARANKANATHIL, VIYYUR, THRISSUR. BY ADV. SRI.C.HARIKUMAR RESPONDENTS: ACCUSED & STATE: ----------------------------------------- 1. K.A.PAULSON, S/O. ANTONY, KANNEKADAN HOUSE, NEDUPUZHA, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVINDRABABU SRI.P.RAMACHANDRAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1582 of 2004 ------------------------------------------------ Dated this the 17th day of March, 2008 JUDGMENT This is appeal filed with leave by the appellant who was complainant in C.C.798/01 on the file of the Judicial First Class Magistrate's Court-II, Thrissur assailing the acquittal of the first respondent/the accused therein of offence under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 2. The appellant filed complaint in the court below alleging that the first respondent borrowed an amount of Rs.55,000/- altogether from her on three different occasions for his business purposes promising to pay the amount as and when demanded; that when the amount was demanded back, the first respondent issued Ext.P1 cheque dt.17/01/01 drawn on his account at the Thrissur S.T.Nagar branch of the Federal Bank; that she forwarded the said Crl. Appeal No.1582 of 2004 -2- cheque for collection through her bankers namely the Nedupuzha Service Co-operative Bank for collection and thereupon it was returned dishonoured under Ext.P2 memorandum assigning the reason “insufficient funds”; that thereafter she approached the first respondent and informed him of the dishonour of the cheque and thereupon, he advised her to wait for one more month for realisation of the cheque amount promising that he would arrange sufficient funds in the meanwhile; that after a period of one month on the instructions of the first respondent she presented the cheque for collection through her bankers and then also the cheque was dishonoured assigning the reason “insufficient funds”; that thereupon, the original of Ext.P3 notice was issued to the first respondent through lawyer under Ext.P4 postal registration receipt intimating him of the dishonour of the cheque and Crl. Appeal No.1582 of 2004 -3- demanding payment of the amount covered by the cheque; that the said notice was received by the appellant under Ext.P5 postal acknowledgment card and he has caused Ext.P6 reply to be issued thereto setting up untenable contentions and has not paid up the amount covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the first respondent in the court below, he was served with copies of all relevant records in the case and he was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the appellant, PW1 is examined and Exts.P1 to P6 were got marked. On Crl. Appeal No.1582 of 2004 -4- the appellant closing her evidence the first respondent/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, himself and one Sethumadhavan were doing business jointly; that he had entrusted two blank signed cheques to Sethumadhavan; that the relationship in business with Sethumadhavan got strained thereafter; that the appellant and her husband is having political animosity towards him; and that the appellant has filed a complaint making use of the cheque that was in possession of the said Sethumadhavan. 5. On the defence side DWs.1 and 2 were examined. The court below considered the case in the light of the evidence adduced as aforesaid; found the first respondent not guilty of offence punishable under Section 138 Crl. Appeal No.1582 of 2004 -5- of the N.I. Act and consequently, acquitted him of the offence thereunder vide Section 255 (1) of the Cr.P.C. Hence, this appeal by the aggrieved appellant. 6. It is vehemently contended before me by the learned counsel for the appellant that the defence case is that a blank signed cheque leaf of the first respondent happened to be with one Sethumadhavan; and that as the relationship between the first respondent and Sethumadhavan got strained, the appellant has filed the complaint making use of the blank signed cheque leaf of the first respondent which was in possession of Sethumadhavan but that the said Sethumadhavan who is a material witness to the cause is not cited and examined; and that therefore, the defence case should have been disbelieved and a conviction entered into as against the first respondent for offence under Section 138 of the N.I. Act. Crl. Appeal No.1582 of 2004 -6- 7. It is further contended that in Ext.P6 reply notice issued on receipt of Ext.P3 notice the first respondent had no such case of a blank signed cheque leaf having been issued to Sethumadhavan and that having been misused by the appellant consequent on their estrangement to file the complaint except that there is no consideration for Ext.P1 cheque. 8. It is true that it is for the first time when questioned under Section 313 Cr.P.C that the first respondent develops a case as regards the appellant coming into possession of Ext.P1 cheque when he had no such case at the time of issuance of Ext.P6 reply notice. In cross examination it has been brought out that the appellant is a Co-operative Inspector in Khadi Board that the first respondent is a neighbour of her sister and it is through her sister and her son that she came into acquaintance with the first respondent; that Crl. Appeal No.1582 of 2004 -7- the acquaintance with the first respondent was for the last 10 - 25 years; that in connection with advancing of amount in the first instance she had come into acquaintance also with Sethumadhavan who according to the first respondent was his partner in his business. To the question in cross examination as to whether the appellant and the said Sethumadhavan were not running a restaurant under the name and style “Gokulam Restaurant” the appellant has answered emphatically denying that suggestion. She has again reiterated that the acquaintance with Sethumadhavan was only through the first respondent. According to her, the first respondent and Sethumadhavan were jointly conducting business under the name and style “Rozgar Films”, but that she is not aware as to whether the said business is terminated. She has stated that she has seen Sethumadhavan Crl. Appeal No.1582 of 2004 -8- only once and that was when he accompanied first respondent to her office to meet her. According to the appellant, amount was advanced on the second occasion after about an year of her advancing the first loan and it was thereafter after two months that on a third occasion amount was advanced; and that the total amount so advanced is Rs.55,000/-. According to her, cheque was issued only on 17/01/01 when the entire Rs.55,000/- was advanced and not earlier to that. In cross examination, PW1 has stated that amounts were got advanced from her on all the three occasions promising to give membership in Rozgar Films; that on the offer of the first respondent that that would fetch more benefits than investing funds in banks; and that granting of membership was being deferred by the first respondent stating that membership would be issued on the business making some Crl. Appeal No.1582 of 2004 -9- more development and that finally Ext.P1 cheque was being issued in discharge of those amounts paid by her. She has emphatically denied the suggestion put to her in cross examination that the cheque used for Ext.P1 is one made up on a blank signed cheque leaf of the first respondent which was handed over to Sethumadhavan while Sethumadhavan and himself were jointly conducting business. 9. The contention that is urged before me by the counsel for the first respondent is that there is no proof regarding advancing of Rs.55,000/- by the appellant to the first respondent and therefore, her case that Ext.P1 cheque was being issued in discharge of Rs.55,000/- due to her cannot be believed. 10. It is worthy to note that the contention is being advanced on behalf of the first respondent who has not cared to examine Sethumadhavan the material witness who ought Crl. Appeal No.1582 of 2004 -10- to have been examined in the nature of the defence set up by the first respondent himself. The first respondent has tendered evidence as DW1 and he has admitted that the signature in Ext.P1 is his own signature and in cross examination he has stated that he is not examining Sethumadhavan. Consequently, therefore, he wanted to develop a case of blank signed cheque leaf having been issued to Sethumadhavan and Sethumadhavan having colluded with the appellant and her husband to bring into existence Ext.P1 and to file a complaint of this nature shielding Sethumadhavan from being brought to court. It is in this background that the case of the appellant has to be considered. The evidence let in by examination of DW2 who is a broker of vehicles regarding issuance of a blank cheque leaf to Sethumadhavan by the first respondent wherein the first respondent had affixed signature Crl. Appeal No.1582 of 2004 -11- only is not of any use when the first respondent has admitted that he has no intention to examine Sethumadhavan who is the material witness to establish his contentions if at all his contention is true. The first respondent has no case however, that the appellant is not having means to advance Rs.55,000/- as stated by her. The mere fact that the appellant had not obtained documentary evidence on all the three occasions when she advanced the amount to the first respondent does not render her case unbelievable. When the case set up by the appellant is rendered convincing and believable and there is Ext.P1 cheque signed by the first respondent seen issued in favour of the appellant there is absolutely no reason why the case of the appellant should not be believed especially when the first respondent has screened Sethumadhavan the material witness to the Crl. Appeal No.1582 of 2004 -12- transaction set up by him and not established his contention. 11. Thus, on an appreciation of the entire evidence in the case, I am constrained to accept the case of the appellant as regards advancing of amount of Rs.55,000/- by her to the first respondent. The dishonour of Ext.P1 cheque has been for insufficiency of funds in the account of the first respondent is not assailed. It is also not in dispute that all statutory formalities required for the maintainability of a complaint under Section 138 of the N.I. Act stand complied with in the instant case. The first respondent having not made payment of the amount covered by the cheque either within the statutory period or ever thereafter till filing of the complaint, a case for conviction for offence under Section 138 of the N.I. Act stood made out and the court below went wrong in acquitting the Crl. Appeal No.1582 of 2004 -13- first respondent of the said offence. 12. In the result, allowing this appeal in reversal of the order of acquittal passed by the learned Magistrate, I find the first respondent guilty of offence punishable under Section 138 of the N.I. Act and convict him thereunder. Consequently, I sentence him to undergo simple imprisonment for a term of six months and to pay an amount of Rs.70,000/- by way of compensation to the appellant under Section 357(3) of the Cr.P.C. K.P.BALACHANDRAN, JUDGE kns/-