IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 CRL.A.No. 1326 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.165/2003 Dated 09/07/2003 CC.64/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT/COMPLAINANT: ---------------------------------------- S. LEELA KUMARI, L.F. 2/214, VRINDAVAN GARDEN, PATTOM P.O. THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/ACCUSED & STATE: -------------------------------------------------- 1. MOHANAN NAIR, S/O. NARAYANA PILLAI PROPRIETOR, COSMO WORKSHOP, CHAKKAI, THIRUVANANTHAPURAM RESIDING AT VADAKKAVILAKATHU VEEDU, EDAGRAMAM, PAPPANAMCODE P.O. THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.GOPALAKRISHNAN NAIR FOR R1 SRI.R.BINDU (SASTHAMANGALAM) FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON 17/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1326 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 64 of 2002 on the file of the Judicial First Class Magistrate - V, Thiruvananthapuram. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. On 25.5.2000 the accused borrowed Rs.1,40,000/- from the complainant and in discharge of that debt, issued a cheque dt.25.5.2000 for the said amount drawn on the Central Bank of India, Thiruvananthapuram. The cheque was dishonoured for the reason of insufficiency of funds. The fact of dishonour was intimated to the accused by sending a registered lawyer notice dt.20.6.2000, calling upon the accused to pay the cheque Crl.A. No. 1326 of 2003 2 amount. Inspite of receipt of notice on 22.6.2000, the accused did not repay the amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P3 series were marked. On the defence side, DW1 was examined and Exts.D1 and D2 were marked. The learned Magistrate, on considering the evidence, found that reason No.10 written and ticked in Ext.P2 dishonour memo was subsequently manipulated by the complainant to make it appear that Ext.P1 cheque was dishonoured for the reason of insufficiency of funds and that Ext.P1 cheque was not dishonoured for the reason of insufficiency of funds and therefore, the offence under Section 138 of the N.I. Act is not attracted and the accused was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 1326 of 2003 3 5. The learned counsel for the appellant submitted that there was no evidence prima facie to suggest that the appellant had manipulated Ext.P2 by making additional entries therein. The learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and therefore the learned Magistrate is not justified in acquitting the accused. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., his case was that he borrowed Rs.70,000/- from the complainant in January, 1999 and at that time the complainant obtained a blank signed cheque from him and the accused repaid the entire amount in December 1999. When he demanded back the cheque, the complainant told that the cheque will be returned without any delay. Inspite of repeated demands, the complainant did not return the cheque and that Crl.A. No. 1326 of 2003 4 the cheque was subsequently misused by the complainant and that cheque is Ext.P1. 7. For proving his case the accused was examined as DW1. He deposed about his case as stated by him in his Section 313 statement. 8. When the complainant was examined as PW1 she admitted that Ext.D1 is a receipt given by her to the accused. In Ext.D1 receipt dt. 19.8.1999 the complainant had admitted that the accused had given her Rs.22,000/- as interest from May to July 25, as interest for the amount of Rs.70,000/- borrowed by the accused. When PW1 was cross examined, she stated that Ext.D1 relates to another transaction. The accused has not produced any document to show that he paid the entire amount of Rs.70,000/- mentioned in Ext.D1. Ext.D2 is a notice dt. 1.2.2001 issued from the Vanitha Cell, Trivandrum to the accused stating that a complaint has been filed by the complainant against the accused. On perusing the records, it is seen that the complaint under Section 138 of the N.I. Act was filed before the Magistrate Court on Crl.A. No. 1326 of 2003 5 13.7.2000 and therefore there is no necessity for the complainant to file another complaint before the Vanitha Cell with regard to Ext.P1 cheque transaction. Therefore the defence case appears to be not probable. 9. When the complainant was examined as PW1, she deposed that the accused borrowed Rs.1,40,000/- from her on 25.5.2000 and for repaying that amount the accused issued Ext.P1 cheque to her. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo. PW1 deposed that she lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. But the accused did not repay any amount. Ext.P3 series are copies of the lawyer notice, postal receipt and postal acknowledgment. In Ext.P2 dishonour memo it is stated that Ext.P1 cheque was dishonoured due to reason No.5, which is 'property not marked' Along with that reason No.10 is mentioned in Ext.P2 as Crl.A. No. 1326 of 2003 6 another reason for dishonour of the cheque, which is 'funds insufficient'. The finding of the learned Magistrate is that insertion of item No.10 is a manipulation by the complainant. The accused has no case that he had sufficient funds in his account to encash Ext.P1 cheque. The accused has not produced any document to prove that Ext.P1 cheque was not dishonoured due to insufficiency of funds in the account of the accused. To the lawyer notice issued to the accused, he did not send any reply. Therefore the finding of the learned Magistrate that there was manipulation in Ext.P2 is without any basis. On appreciating the testimony of PW1 in the light of the defence case, I am of the view that Ext.P1 cheque was issued by the accused in favour of the complainant. 10. Since execution of Ext.P1 cheque is proved by the complainant, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. But the evidence adduced from the side of the accused is not sufficient Crl.A. No. 1326 of 2003 7 to rebut that presumption. As the accused committed the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the Act he is convicted for that offence. 11. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,40,000/- would meet the ends of justice. 12. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 64 of 2002 on the file of the Judicial First Class Magistrate -V, Thiruvananthapuram is set aside and the accused is found guilty and convicted under Section 138 of the Crl.A. No. 1326 of 2003 8 N.I. Act and he is sentenced to pay a fine of Rs.1,40,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid period, he shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm