IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 CRL.A.No. 913 of 2002() --------------------------------- ST.978/1998 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... APPELLANT(S): COMPLAINANT: -------------------------- JAYAMOHAN, S/O. GOPALAN, PALLATHU VEEDU, KOORKANCHERRY DESOM, DO. VILLAGE, THRISSUR. BY ADV. MR.A.N.KUTTAN RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. V.V. DEVASSY, VELLURAN HOUSE, MAVELIPADAM P.O., KOOVAPPADI, PERUMBAVOOR, ERNAKULAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SMT.REKHA C.NAIR FOR R1 PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.913 OF 2002 ------------------------------ Dated this the 29th day of May, 2009 JUDGMENT This appeal is preferred against the order of acquittal in S.T.No.978/1998 of the Chief Judicial Magistrate, Trichur. It was a prosecution under Section 138 of the N.I.Act and the case of the complainant is to the effect that he had advanced a sum of Rs.40,000/= to the accused towards which he had issued a cheque towards the discharge of the liability which when presented for encashment returned with the endorsement of insufficiency of funds. Thereafter notice was issued and prosecution was launched. 2. The defence of the accused appears to be totally confusing. Therefore, I had meticulously read the last portion of the 313 questioning. It is stated that “borrowed Rs.60,000/= from the complainant. The amount returned back. A blank cheque was given when Rs.60,000/= was paid. That was not returned back and a false case was foisted. This would indicate that at the time of borrowing of Rs.60,000/=, the accused had issued a blank cheque which had not been 2 CRL.A.NO.913/2002 returned and a case is made out of it or in other words it is the cheque that had been given at the time of borrowal of Rs.60,000/= that had been made use of for filing a case. The court below found that execution of the cheque is proved and therefore drew a presumption to hold that the presumption is rebutted and therefore non suited the complainant. It is against that decision, the present appeal is preferred. 3. The point that arises for determination is (1) whether there is anything to interfere with the decision rendered and (2) if so what is the quantum of punishment. 4. It is the case of the complainant that Ext.P1 cheque was issued towards the discharge of the liability which could not be encashed for lack of funds in the account of the accused. The contention of the accused is that the cheque that had been given at the time of transaction of Rs.60,000/= is misused for filing the complaint. The court below relied upon the endorsement of Ext.D1 cheque. Admittedly, Ext.D1 is a photocopy of the cheque that is said to have been given at the time of the original transaction of Rs.60,000/=. The cheque does not bear the date. There is an endorsement in 3 CRL.A.NO.913/2002 the photocopy of the cheque to the effect that the original will be returned to Sri. V.V. Devassy as and when he demands. So, the court below held that the endorsement therein would indicate that there was no arrear to be paid. On the basis of this document, the court below repelled all presumptions and granted an acquittal to the accused. I am afraid that such a decision could not have been taken in the light of the facts and circumstances of this case. When the cheque, that is alleged to be issued at the time of the borrowal of Rs.60,000/= is bearing No.181195, if the case of the accused is true, then the present case should have been initiated on the basis of that cheque. Then one can understand the case set up by the complainant. But as far as this case is concerned, the cheque is 181190. It has nothing to do with the cheque that has been handed over at the time of the alleged borrowal of Rs.60,000/=. So, the contention of the accused as seen revealed from the 313 statement that the cheque that has been handed over at the time of withdrawal of Rs.60,000/= cannot be accepted at all. Altogether the cause of action and the cheque issued are 4 CRL.A.NO.913/2002 totally different and therefore, I cannot agree with the learned Chief Judicial Magistrate that there had been a rebuttal of the presumption under Sections 118 or 139 of the N.I.Act. 5. So far as the execution is concerned, it is true that the writing and the signature are in two different inks. It is stated that the cheque has been written and brought to him and it was signed. There is no prohibition or inhibition in doing so and therefore mere presence of two handwriting would not be sufficient to throw away the case of the complainant. So, from the facts and circumstances, (1) the execution of the cheque stands established. (2) The presumption under Sections 118 and 139 is available. (3) There is no acceptable evidence to rebut the presumption under Sections 118 and 139. Therefore, it has to be held that Ext.P1 cheque has been issued towards the discharge of the liability for the amount borrowed by the accused from the complainant. Therefore, I find that the accused is guilty of the offence under Section 138 . So far as the sentence is concerned, I do not want to send him to prison and justice can be secured by directing to 5 CRL.A.NO.913/2002 pay the cheque amount. So that he gets an opportunity to wipe off the liability 6. In the result: (1). The appeal is allowed. (2) The judgment of the trial court is set aside. (3). The accused is found guilty under Section 138 of the N.I.Act. (4). The accused is convicted and sentenced to pay a fine of Rs.40,000/= which on realization shall be disbursed to the complainant. In case of default, the accused has to undergo S.I for two months. The accused shall pay the fine amount on or before 17.8.2009, failing which the lower court shall execute the sentence in accordance with law. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.913/2002 7 CRL.A.NO.913/2002 beat