IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 CRL.A.No.1124 of 2001 (D) -------------------------------- ST.3152/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... APPELLANT/COMPLAINANT: --------------------------------- K.M. SHAMSUDHEEN, S/O MOHAMMED MASTER, KALLINGAL HOUSE, KARATHOOR, P.O. KODAKKAL. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS/ACCUSED AND STATE: -------------------------------------------- 1. M.BABU, MANAMMAL HOUSE, P.O. ANNARA, TIRUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.T.KRISHNAN UNNI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1124 of 2001 --------------------------- JUDGMENT Appellant is the complainant in S.T.No.3152/98 on the file of the Judicial First Class Magistrate's Court, Tirur. The said complaint was filed by him complaining of commission by the first respondent of an offence punishable under Section 138 of the Negotiable Instruments Act. The allegation is that the first respondent borrowed an amount of Rs.75,000/- from the appellant and towards repayment of the said amount, Exhibit P1 cheque was issued; that the said cheque, on presentation, was dishonoured by the drawee bank assigning the reason “funds insufficient”; that the original of Exhibit P3 notice was issued to the first respondent intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque; that the said notice was accepted by the first respondent under Exhibit P4 postal acknowledgment card, but, he has not paid up CRA 1124/01 2 the amounts either within the statutory period or ever thereafter and that thereby he committed an offence punishable under Section 138 of the Negotiable Instruments Act. 2. On appearance of the first respondent in the court below pursuant to issuance of summons, particulars of the offence was read over and explained to him and he was questioned by the learned Magistrate. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. On the side of the appellant, he gave evidence as PW1 and Exhibits P1 to P5 were got marked. On the prosecution closing their evidence, the first respondent/accused was questioned under Section 313 Cr.P.C. Thereupon, he admitted receipt of notice. But, according to him, no amount is due from him to the appellant, as there is no transaction at all with the appellant. However, he did not adduce any evidence in defence. The learned Magistrate considered the case on the CRA 1124/01 3 evidence so adduced and acquitted the accused under Section 255(1) Cr.P.C., as he was of the view that the appellant had miserably failed to establish the guilt in the first respondent. 3. It is vehemently contended by the learned counsel for the appellant that issuance of the cheque and its dishonour intimated to the first respondent vide original of Exhibit P3 notice, accepted by him under Exhibit P4 acknowledgment card, was not even replied to by the first respondent and hence, the contention that there is no amount due from him to the appellant cannot be heard from him. He also points out that in cross- examination, there is not even a suggestion made to the appellant that the cheque is not one that is drawn on the account of the first respondent or that he has not signed in Exhibit P1 cheque. The appellant has asserted, in cross-examination, that his name, the date and the amounts were all filled up in the cheque, when it was delivered over to CRA 1124/01 4 him, though he has stated that he was not aware as to who has written it, as he has not seen the writings being made in the cheque. Further, PW1 has not stated that he has not seen the first respondent signing the cheque and no such suggestive question was also put to PW1 in cross examination. The suggestive question put to PW1 during cross-examination was only that Exhibit P1 cheque is one issued to one Ramakrishnan, from whom, the first respondent had borrowed the amounts, but, then, there is no suggestion that the cheque issued to Ramakrishnan was a blank one, so as to enable the name of the appellant being inserted therein. The first respondent has not examined the said Ramakrishnan nor has he issued any reply to the notice received by him from the appellant, consequent on dishonour of the cheque. Any ordinary prudent man would have issued a reply on receipt of the original of Exhibit P3 notice, if at all he has not issued any cheque to the CRA 1124/01 5 appellant and no amount is due to the appellant from him. The court below has acquitted the accused holding that the appellant has not even adduced formal evidence to prove the money transaction between himself and the first respondent and that he has not deposed that he has seen the first respondent signing the cheque in his presence. It is worthy to note that the first respondent himself has no case that the cheque is not signed by him and no such suggestive question was also put to PW1 in cross-examination. Under such circumstances, the learned Magistrate should not have observed that there is no proof of execution of Exhibit P1 cheque. If at all the first respondent had not either signed or written the contents in the cheque, it was up to him to suggest in cross-examination either that the signature is not his or that the writings were not there when the cheque was delivered over. No such questions were put to PW1 in cross-examination. In CRA 1124/01 6 the circumstances, acquittal of the accused by the learned Magistrate, finding that there is no proof of execution of Exhibit P1 cheque and that there is not even formal evidence to prove the money transaction between the first respondent and the appellant, cannot be sustained. Hence, in reversal of the said finding, I hold that Exhibit P1 cheque is issued by the first respondent to the appellant in discharge of the debt due to him, accepting the evidence of the appellant as PW1 and drawing presumption available under Section 139 of the Negotiable Instruments Act, as the first respondent has not been successful in rebutting the said presumption. The first respondent has no case also that dishonour of Exhibit P1 cheque was not for reason of insufficiency of funds in his account to honour the cheque or that the statutory requirements for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act does not stand satisfied in the instant case. CRA 1124/01 7 In the result, in reversal of the acquittal order passed by the learned Magistrate, I find the first respondent guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convict him thereunder and sentence him to undergo simple imprisonment for a term of three months and to pay an amount of Rupees one lakh to the appellant as compensation. 1st January, 2008 (K.P.Balachandran, Judge) tkv CRA 1124/01 8 K.P.Balachandran, J. ---------------------- Crl.A.No.1124 of 2001 ---------------------- JUDGMENT 1st January, 2008