IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CRL.A.No. 20 of 2000 CC.40/1998 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... APPELLANT: ASHOK G.KAMATH T.C.29/954(1) KRISHNA KUZHIYOTTU LANE PALKULANGARA, TRIVANDRUM BY ADV. SRI.R.K.VENU NAYAR RESPONDENTS: 1. GILBERT RAJHA SECTION OFFICER B.COM.SECTION E.D.10 UNIVERSITY OF KERALA PALAYAM,TRIVANDRUM 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON 06/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.20 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of February 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the N.I.Act. He impugns the order of acquittal passed by the trial court. 2. The case of the appellant/complainant before the court below was that the accused had issued Ext.P1 cheque on November 16, 1996 for Rs.2,00,000/- drawn on the British Bank of Middle East, Vellayambalam branch, towards repayment of the money advanced by him to the accused as a loan. According to the complainant, the accused had borrowed the above sum in cash on October 4, 1996. After about a month, when the complainant demanded repayment, the accused had issued the above post dated cheque. But when the cheque was presented for encashment, it was dishonoured by the bank with the endorsement “Exceeds Arrangement”. There upon the complainant had issued Ext.P3 statutory demand notice. But the accused did not discharge the debt; on the contrary, he sent Crl.A.No.20 OF 2000 :: 2 :: Ext.P7 reply notice containing untenable contentions. Hence, the complaint. 3. Before the trial court, complainant was examined as PW1. His witnesses were examined as PW2 to 4. Exts.P1 to P9 were also marked on his side. Though there was no oral evidence on the side of the accused, Ext.D1 was marked on his side. 4. The learned Magistrate while dealing with the points formulated by him for consideration found that the cheque was dishonoured due to insufficiency of funds in the account of the accused. It was also held that the complainant had complied with the statutory formalities for instituting the complaint. 5. The learned Magistrate while considering the point “whether the cheque was issued by the accused for the discharge of a debt or liability in the account maintained by the accused” held that there was no evidence to show that Ext.P1 cheque was issued from the account maintained by the accused. It was further held that the accused had rebutted the presumption available to the drawee of the cheque under Section Crl.A.No.20 OF 2000 :: 3 :: 139 of the Act. The learned Magistrate also took the view that the complainant had failed to prove that Ext.P1 cheque was issued in discharge of a legally recoverable debt or liability. 6. Having heard learned counsel for the appellant and having perused the oral and documentary evidence in the case, I have no hesitation to hold that the finding entered by the learned Magistrate is wholly unsustainable and illegal. The learned Magistrate for some unknown obscure and incomprehensible reasons had embarked upon some fantastic propositions which had not factual basis at all. For instance, the learned Magistrate detected or found out that Ext.P1 cheque did not contain the account number. Significantly, the accused did not have such a case nor did he contend in his deposition that Ext.P1 cheque belonged to someone else's account. The other revelation which occurred to the learned Magistrate was that the name as found in Ext.P9 extract of the Bank account was not that of the accused. In Ext.P9 the name of the holder was shown as Hilbert Rajah. His name was shown as Gilbert Rajah in the complaint. The accused had not raised any objection at any point of time Crl.A.No.20 OF 2000 :: 4 :: with regard to his name shown in the complaint. Interestingly in Ext.P7, reply notice, the accused had specifically referred to Ext.P1 cheque while admitting that he had issued the same as security for certain sums of money borrowed by him from the complainant on various occasions. In other words, the accused did not have a case that he had not issued Ext.P1 cheque. He did not dispute his signature in the cheque. He had also admitted that Ext.P1 cheque was for Rs.2,00,000/- and that it was drawn on British Bank of Middle East, Vellayambalam branch in favour of the complainant. It is also pertinent to note that the accused had never raised any contentions as advanced by the learned Magistrate, when he was questioned under Section 313 of the Code of Criminal Procedure. The accused had stated that he did not owe the amount shown in the cheque. According to the accused, he was being prosecuted 'due to some other problem” and only with a view to harass him. The above being the position as admitted by the accused himself, it is totally incomprehensible as to how the learned Magistrate would have invented a case which was totally alien to the evidence available on record. It Crl.A.No.20 OF 2000 :: 5 :: may also be noticed that the PW4, Manager of the British Middle East Bank had stated that Ext.P1 cheque was issued from the account maintained by the accused and that it was dishonoured only since sufficient funds were not available. In the above facts and circumstances, I have no hesitation to set aside the order of acquittal. I have also no hesitation to hold the accused guilty under Section 138 of the Act. I do so. However, since I am of the view that the accused has to be heard on sentence, I am satisfied that the case has to be remitted to the court below with a direction to the learned Magistrate to pass appropriate orders on sentence. Ordered accordingly. This shall be done by the learned Magistrate after hearing the accused. Since this is a case of 1997, the learned Magistrate shall dispose of the same as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Appeal is allowed in the above terms. (A.K.BASHEER, JUDGE) jes Crl.A.No.20 OF 2000 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.20 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 6th Feb. 2008