IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 CRL.A.No. 1756 of 2003 ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.383/2003 Dated 24/09/2003 CC.972/1994 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... APPELLANT/COMPLAINANT: ----------------------------------------- P.V.ABDULLA, S/O. MOIDU,PANDIKASALAVALAPPIL, KANNOOKKARA AMSOM DESOM, VADAKARA. BY ADV. SRI.C.D.SHAJU SMT.THUSHARA.V RESPONDENTS/ACCUSED AND STATE ------------------------------------------------------ 1. C.M. GANGADHARARAN, C.M. OIL MILLS, C.P.ROAD, MENAPURAM, CHOKLI, BADAGARA. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN. R1 BY ADV. SRI.T.A.RAMADASAN R2 BY ADV. SRI.T.G.RAJENDRAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MM P.S.GOPINATHAN. J --------------------------------- Crl.Appeal No.1756 OF 2003 --------------------------------- Dated this the 10 th day of November , 2011 J U D G M E N T The appellant is the complainant in C.C No.972 /1994 on the file of the Judicial Magistrate of the First Class, Vadakara. He prosecuted the first respondent alleging offence under Section 138 of the Negotiable Instruments Act, with an allegation that the first respondent borrowed a sum of Rs.30,200/- from the appellant, for the discharge of which, two cheques, which were marked as Exts. P1 and P2 for Rs. 12,200/- and 18,000/, respectively were issued, and that when presented for collection, cheques were returned dishonoured for insufficient funds and despite acknowledgment of the notice the liability was not discharged. 2. The first respondent pleaded not guilty, when the Crl.Appeal No.1756/2003 2 particulars of the offence were read over and explained. Therefore, he was sent for trial. The appellant was examined as PW1 and the Manager of the Bank was examined as PW2. Exts.P1to P8 and X-1 were marked. When questioned under Section 313 of the Code of Criminal Procedure he took a defence that he had given 2 blank cheques to the father-in-law of the appellant. Misusing both the cheques, this prosecution was launched. However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence, arrived at a finding that there is some discrepancy in the evidence of PW1 regarding the place of lending and therefore, existence of liability is not believable and that the notice was issued, beyond the period prescribed under Section 138(b)of the Negotiable Instruments Act. Consequently, the first respondent was acquitted under 255(1) of the Code of Criminal Procedure. Assailing the above judgment of acquitttal, this appeal was preferred after obtaining leave. Crl.Appeal No.1756/2003 3 3. On behalf of the appellant, Adv. Smt. Valsala was heard. On behalf of the first respondent, Adv. Sri. B. Unnikrishnan was heard. The judgment impugned as well as the evidence and the documents were perused. 4. Going by the evidence of PW1, I find that PW1 had given evidence in support of the plea of lending and issuance of Exts.P1 and P2 cheques. Though PW1 was subjected to searching cross-examination with a plea that Exts. P1 and P2 cheques were issued blank to the father- in- law of the appellant, no material was disclosed to disbelieve him or to show that there was any transaction between the 1st respondent and the father-in-law of the appellant or to show that the appellant has got the cheques in any other manner than that was deposed by PW1. It is the consistent case of the appellant that he had lent the money at Kannookkara. In the searching cross-examination, he had admitted that Crl.Appeal No.1756/2003 4 Rs.2,00/- was paid in a local hotel and the balance amounts was paid at his house. That is not at all a reason to disbelieve PW1. It is pertinent to note that the first respondent had acknowledged the notice demanding discharge as evidenced by Exts. P7 and P8. But there was no reply. The silence on the part of the first respondent after acknowledging notice speaks volumes . It appears that he has no good defence and the plea that Exts. P1 and P2 cheques were issued blank to the father -in-law of the appellant is the result of an after thought and an experimental defence. The evidence of PW1 remains unimpeached despite searching cross examination . His evidence regarding liability and the issuance of cheque is supported by the presumptions under Section 118 and 139 of the Negotiable Instruments Act. There is not even an attempt on the side of the respondent to rebut the legal presumptions . Therefore, I find that the learned Magistrate was absolutely wrong in concluding that the appellant has not Crl.Appeal No.1756/2003 5 succeeded to establish the liability and issuance of the cheque. 5. Exts. P3 and P4 memos intimating dishonour of the cheques are dated 04-08-1994 . In Exts. P5 and P6 notices, the learned counsel had specifically mentioned that Exts.P3 and P4 were received only on 24-08-1994. That was not at all challenged in cross-examination. So it has to be presumed that the first respondent did not dispute the date of the receipt of Exts.P3 and P4 by the appellant. Exts.P5 and P6 notices are dated 03-09-1994. It is alleged that the said notices were caused on 06-09-1994. There is no material available on record to come to a conclusion that the notices were actually despatched on 06-09-1994. However, that is immaterial because the averment in Exts.P5 and P6 that the Exts.P3 and P4 were received only on 24-8-1994 remains unimpeached. That being the evidence even if the notices were issued on 06-09-1994 , it is within the time stipulated under Section 138(b) of the Negotiable Instruments Act. Crl.Appeal No.1756/2003 6 Therefore, I find that the finding of the lower court on that aspect is not at all sustainable. At the time of argument, the learned counsel for the first respondent produced a copy of the decree in 0S No.118/97. It would show that the suit instituted by the appellant against the first respondent was decreed with costs and interest at the rate of 18%. That decree lends support to the plea of the appellant regarding the borrowal and issuance of the cheques. 6. Having taken notice that the liability arose out of a business transaction that occured 17 years back and that financial difficulties persuaded the 1st respondent to face the prosecution, I find that the first respondent is entitled to leniency in sentence and that a sentence of imprisonment till the rising of the court with a fine of Rs.35,000/-would meet the ends of justice. 7. In the result, this appeal is allowed. While setting aside the judgment of acquittal, the first respondent is Crl.Appeal No.1756/2003 7 convicted for offence under Section. 138 of the Negotiable Instruments Act and sentenced to imprisonment till the rising of the court and to pay a fine of Rs. 35,000/-. In default of payment of fine, the first respondent shall undergo simple imprisonment for 6 months. The fine amount, if realised, shall be paid to the appellant as a compensation . In the event , the decree in OS.No. 118/97 on the file of the Munsiff's Court, , Vadakara.is fully satisfied , it shall be reckoned as deposit of the fine amount of Rs.32,000/- and the balance Rs.3,000/- alone need be deposited. P.S.GOPINATHAN JUDGE MM Crl.Appeal No.1756/2003 8 Crl.Appeal No.1756/2003 9