IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 1044 of 2002(D) ------------------------ CRA.506/2000 of SESSIONS COURT, KOZHIKOE .................... APPELLANT(S): COMPLAINANT/1ST RESPONDENT: -------------------------------------------------------- K.K.SADANANDHAN, KIZHAKKE KUNIYIL HOUSE, THALAKULATHOOR AMSOM DESOM KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ACCUSED/APPELLANT & STATE: ---------------------------------------------------------- 1. V.D.SAVITHRI, W/O. VELAYUDHAN, VADAKKE DEVASYATHIL HOUSE, THALAKULATHOOR, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMED. SRI.P.SANJAY FOR R1 SRI.M.MUHAMMED SHAFI FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1044 OF 2002 = = = = = = = = = = = = = = = Dated this the 21st day of May, 2009. J U D G M E N T This Crl. Appeal is preferred against the judgment of the Sessions Judge, Kozhikode whereby the learned Sessions Judge reversed the conviction and sentence passed by the trial court in a 138 case. The trial court on a consideration of the materials held that the complainant has succeeded in proving the case and therefore convicted the accused to undergo imprisonment for a period of six months and to pay a fine of Rs.1,000/-. It is against that decision an appeal was preferred and the appellate court reversed the conviction and sentence and set the accused at liberty. It is against that decision the present appellant has come up before this Court. 2. Heard the learned counsel for both the sides and perused the documents, evidence and the judgments rendered by both the Courts. It is the case of the complainant that for the purpose of her daughter's marriage the accused borrowed Crl. Appeal NO. 1044 OF 2002 -2- a sum of Rs.60,000/- with a promise to pay back the same. As she did not pay the amount in time she was contacted and initially further time was sought for. Again when he went for the collection of the amount the accused had issued a cheque Ext.P1 towards the discharge of the liability. When the said cheque was presented for encashment it was returned with the endorsement of insufficiency of funds and after complying with the statutory requirements a case has been launched u/s 138 of the N.I. Act. 3. PW1 and PW2 were examined before the trial court. PW2 is the defacto complainant. In chief examination he had deposed in tune with the complainant and he had also faced the cross-examination and nothing has been brought out in the cross examination to discard his evidence. It is true that he had deposed before Court, “........................................... ...........................................................” He had denied the suggestion that except the signature, body of the cheque is in another ink. I had perused the disputed cheque as well. With a naked eye it does not reveal that they are written at different times. The appellate court just on the basis of the word '...................' had reversed the judgment of the trial Crl. Appeal NO. 1044 OF 2002 -3- court which was improper. It has to be stated that before the initiation of the action a notice was issued which was received by the accused and she did not send any reply. In 313 question also she did not say that somebody else had written the cheque. She did not adduce any evidence at all. So a mere suggestion to the complainant during the time of cross- examination cannot be considered as a substitute for proof and the evidence of PW2, the complainant does not suffer from any infirmity. So I feel the appellate court has grossly erred in reversing the conviction and sentence passed by the Court below and the materials available only points out that the case has been proved. I am conscious of the fact that the mere admission of a signature in a document is not sufficient to prove execution of the document. But when PW2, the complainant deposes before Court that towards the discharge of the liability when he approached the accused she had executed a cheque and handed over it to him by putting her signature remains uncontroverted. I find it is sufficient. Therefore I set aside the judgment of the appellate court and find that the accused is guilty of the offence u/s 138 of the N.I. Act. So far as the sentence is concerned it is true that the Crl. Appeal NO. 1044 OF 2002 -4- transaction is of the year 1998 and it had been pending in Courts for more than a decade. Taking into consideration the facts and circumstances of the case I feel this is a fit case where the sentence of fine can be imposed as the present statute permits the Court to levy of fine double the amount involved in the cheque. I restrict it to the cheque amount and therefore the appeal is disposed of as follows. 4. The order of acquittal passed by the appellate court is set aside and it is found that the accused is guilty u/s 138 of the N.I. Act. She is convicted and sentenced to pay a fine of Rs.60,000/- and in case of default to undergo imprisonment for a period of three months. The accused is granted time till 31.8.09 to wipe off the liability and in default the trial court is directed to execute the sentence. When the fine amount is realised it has to be disbursed to the complainant on her application. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1044 OF 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1044 OF 2002 = = = = = = = = = = = J U D G M E N T 21st May, 2009