IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 CRL.A.No.1747 of 2006 (A) ------------------------------- AGAINST THE JUDGEMENT IN CRA.400/2005 OF ADDL. DISTRICT AND SESSIONS JUDGE (ADHOC-III) CC.928/2003 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, KOTTARAKKARA .................... APPELLANT: RESPONDENT/COMPLAINANT ------------------------------------------------- SANTHOSH, KAIKKULANGARA VEEDU, PERINADU VILLAGE, KOLLAM TALUK. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: APPELLANT/ACCUSED AND STATE ----------------------------------------------------------- 1. LALY S/O.PARAMU, LALMANDIRAM, NJARAKKAL, PERINADU P.O., KOLLAM. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL PUBLIC PROSECUTOR SRI.V.T.K.MOHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1747 of 2006 ------------------------------------------------ Dated this the 15th day of February, 2008 JUDGMENT The complainant in C.C.928/03 on the file of the Judicial First Class Magistrate's Court-I, Kottarakkara is the appellant. He challenges in this appeal, the acquittal of the first respondent of an offence under Section 138 of the N.I. Act under Section 255 (1) of the Cr.P.C by the Sessions Court, Kollam vide judgment in Criminal Appeal No.400/05 dt.31/12/05. 2. The appellant filed complaint before the Judicial First Class Magistrate's Court-I, Kottarakkara alleging inter alia that on 10/07/02, the first respondent approached him and borrowed an amount of Rs.1,45,000/- for his business purposes promising to repay the amount within a month; that when he was pressed for return of the amount, he came over to the house of the appellant on 27/08/02 and Crl. Appeal No.1747 of 2006 -2- delivered over to the appellant Ext.P1 cheque dt.27/08/02 for an amount of Rs.1,45,000/- making him to believe that there is sufficient funds in his account to honour the cheque; that Ext.P1 cheque was forwarded for collection through the Kottarakkara branch of the State Bank of Travancore and that was returned unpaid assigning the reason “payment stopped by the drawer” under Ext.P2 memorandum which was forwarded to the bankers of the appellant; that the appellant's bankers returned Ext.P1 cheque along with Ext.P2 memorandum to him under Ext.P3 memo dt.12/09/02; that thereupon, the original of Ext.P4 notice was caused to be issued through lawyer to the first respondent under Ext.P5 postal registration receipt and that was received by the first respondent under Ext.P6 postal acknowledgment card on 07/10/02, but the first respondent has neither issued any reply to the said notice nor has he made Crl. Appeal No.1747 of 2006 -3- payment of the amounts covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the appellant/accused before the trial court, he was served with copies of all relevant records in the case and was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the Magistrate. 4. On the side of the complainant, he gave evidence as PW1 and got marked in evidence Exts.P1 to P6. On the complainant closing his evidence, the first respondent was questioned by the Magistrate under Section 313 of the Criminal Procedure Code. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and Crl. Appeal No.1747 of 2006 -4- maintained that he is innocent. According to him, there is no transaction at all between himself and the appellant; and that the transaction he had was a loan transaction with one Devarajan for an amount of Rs.30,000/- for which three blank cheques were received from him and he has paid an amount of Rs.15,000/- also towards interest. However, he did not adduce any evidence in defence. 5. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid; found that the first respondent has committed an offence punishable under Section 138 of the N.I. Act; convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also directed him to pay an amount of Rs.1,45,000/- to the appellant by way of compensation under Section 357(3) Cr.P.C. 6. The conviction and sentence so passed against the first respondent was assailed by Crl. Appeal No.1747 of 2006 -5- him filing Crl. Appeal No.400/05 before the Sessions Court, Kollam and the Sessions Court vide judgment in the said Crl. Appeal dt.31/12/05 allowed the appeal and set aside the conviction and sentence as the learned Sessions Judge was of the view that the reason for dishonour of the cheque is stopping of payment by the drawer and the complainant has not produced any evidence to show that at the time of dishonour of Ext.P1 cheque there was no sufficient funds in the account of the first respondent to honour the said cheque and that therefore, a conviction under Section 138 of the N.I. Act will not be sustainable. It is the said acquittal that is challenged in this appeal by the aggrieved appellant/complainant. 7. It is contended before me by the learned counsel for the appellant that the case of the appellant even in the complaint filed in the court below in para 5 of the complaint is that Ext.P1 cheque was being Crl. Appeal No.1747 of 2006 -6- issued in discharge of Rs.1,45,000/- being debt due to the appellant from the first respondent with knowledge for the first respondent that there is no sufficient funds in his account to honour the said cheque and that therefore, he himself was causing the cheque being dishonoured by giving directions for stop payment; and further that in cross examination, though the appellant has tendered evidence as PW1, no question is put to him suggesting that there was sufficient funds in the account of the first respondent to honour Ext.P1 cheque, but for the stop payment direction given and that therefore, conviction of the first respondent by the trial court should not have been reversed by the Sessions Judge for the reason that records from the bank were not got down to establish that there was no sufficient funds in the account of the first respondent to honour Ext.P1 cheque especially as existence of funds in the Crl. Appeal No.1747 of 2006 -7- account is a question of fact which does not deserve to be proved by production of records in case, it is not disputed and that therefore, the conviction and sentence passed by the trial court be restored reversing the judgment of the first appellate court. 8. On the other hand, it is contended by the learned counsel for the first respondent that the definite case set up by the first respondent/accused in the court below is that the loan transaction he had was with one Devarajan delivering to him altogether three blank signed cheques; that to prove that the said cheque is misused to file a complaint through the appellant he has produced Exts.R1 (a) and R1(b) documents that those documents be admitted in evidence and the case of the first respondent upheld or that if this Court is of the view that the matter requires evidence the matter be remitted back to the trial court enabling the first respondent to Crl. Appeal No.1747 of 2006 -8- adduce evidence in the matter. 9. The prayer to have the case remanded for adducing further evidence cannot be granted as the case is one of 2003 filed before the trial court on 31/10/02 and it is not proper for this Court to remand the case when the first respondent did not want to adduce any evidence before the trial court or before the first appellate court. 10. The definite case in the complaint filed by the appellant is that Ext.P1 cheque was being issued by the first respondent with the knowledge that there is no sufficient funds in his account to honour the said cheque and that therefore, the cheque would be dishonoured and therefore, he was wilfully giving instruction to stop payment of the cheque. The case so alleged in the complaint had been sworn to also by PW1 in his evidence. There is no challenge on this aspect and there is no suggestion even made to PW1 to the Crl. Appeal No.1747 of 2006 -9- effect that there was sufficient funds in the account of the first respondent to honour Ext.P1 cheque but for the payment having been stopped by the first respondent. If the first respondent/drawer of the cheque himself is not having a case that there was sufficient funds in his account to honour Ext.P1 cheque on the day of its presentation, then as rightly contended by the counsel for the appellant, the appellant has no burden to call for records from the bank to establish that there was no sufficient funds in the account of the first respondent to honour Ext.P1 cheque for Rs.1,45,000/-. Copy of notice that is sought to be got admitted as Ext.R1(a) by the first respondent is copy of a notice addressed to Advocate Sri.G.Radhakrishna Sharma, Kollam from advocate Sri.Sanjeev Somarajan in reply to a notice issued by the former on behalf of the present first respondent by way of reply to notice issued on behalf of one Sivarajan Crl. Appeal No.1747 of 2006 -10- with copy to one Devarajan and the present appellant. Counsel for the appellant submits that the address of the appellant shown in Ext.R1(a) differs from the address of the appellant shown in the records in this case. But however, a photostat copy of acknowledgment card stated to have been signed by the appellant is seen produced as part of Annexure-R1(a) and the signature therein is disputed by the counsel for the appellant as according to him, that is not the signature of the appellant. The said Ext.R1(a) notice is seen dt.13/09/02, but the registration receipt thereof shows that it was despatched only on 16/09/02. The notice issued by Advocate Sri.G.Radhakrishna Sharma on behalf of Sri.Sivarajan is not produced. With the result, this Court is not in a position to understand as to what were the facts stated therein. However, in Ext.R1(a) reply something more than what is stated in reply to 313 Crl. Appeal No.1747 of 2006 -11- questioning is stated and that is to the effect that a further loan of Rs.15,000/- also was availed of and then certain records inter alia two blank signed cheque leaves were also entrusted and the contention is that one out of those two cheques is Ext.P1 involved in this case that means the contention advanced in Ext.R1(a) is not what is stated by the first respondent when questioned under Section 313 Cr.P.C. However, it is worthy to note that the alleged transaction of availing of Rs.15,000/- more as loan is on 07/01/02 and the original loan of Rs.35,000/- is stated to be availed on 03/12/01. The dishonour of Ext.P1 cheque vide Ext.P2 memorandum by the drawee bank is on 12/09/02. There is every chance for the first respondent who had given stop payment direction to the bank to come to know of the dishonour of Ext.P1 cheque on the date of dishonour itself. It is thereafter, that Ext.R1(a) notice is despatched on Crl. Appeal No.1747 of 2006 -12- 16/09/02 with date of notice mentioned therein as 13/09/02. Further, when the notice issued by Advocate Sri.G.Radhakrishna Sharma is withheld Ext.R1(a) notice cannot be stated to be a document which is complete so as to appreciate the contention of the first respondent. Issuance of Ext.R1(a) reply notice to Advocate Sri.G.Radhakrishna Sharma allegedly in reply to the notice sent by him on behalf of his client Mr.Sivarajan with copies marked to Devarajan and the appellant can be the result of the working of the ingenious mind of the first respondent who had not even made mention of issuance of Ext.R1(a) notice suggesting it to the appellant who gave evidence as PW1 in the case. It is also worthy to note in this context that Ext.P4 notice issued consequent on dishonour of Ext.P1 cheque intimating the first respondent of the fact of dishonour and demanding payment of the amount covered by Ext.P1 cheque has not been Crl. Appeal No.1747 of 2006 -13- replied at all by the first respondent and that goes a long way to show that the contentions raised by him are false. Any ordinary prudent man on receipt of Ext.P4 notice would have certainly issued a reply stating the facts if at all it be that the demand advanced in Ext.P4 notice is false and untenable. It is also worthy to note in this context that in cross examination, PW1 has deposed in answer to the suggestion put to him that the signature in Ext.P1 is not that of the first respondent that the first respondent was bringing the cheque duly written up and was signing it in his presence and delivering it to him stating that it is his own cheque. If at all what is stated in Ext.R1 notice is correct there was no scope for such a suggestion in cross examination that the signature in Ext.P1 is not that of the first respondent as he has no case that blank unsigned cheque leaves were being given by way Crl. Appeal No.1747 of 2006 -14- of security while availing loan from Devarajan. The suggestion made to PW1 in cross examination that the complaint was being filed after notice was issued by the first respondent to Devarajan is also denied by PW1. In this context it is again worthy to mention that Ext.R1(a) notice was issued only on 16/09/02 by registered post whereas the dishonour of Ext.P1 cheque was on 12/09/02. The first respondent has also not disclosed as to when he has issued the stop payment order to his bankers which if produced would have thrown some light on the merits or otherwise of the contentions advanced by the first respondent. The contentions raised by the first respondent on merits even accepting Annexure-R1(a) does not therefore, probabilise the contentions advanced by the first respondent and the case of the appellant in the circumstances, stands highly probabilised and established also in view of the Crl. Appeal No.1747 of 2006 -15- presumption under Section 139 of the N.I. Act even in the event of there being no presumption under Section 139 as regards the quantum of consideration which aspect stands established from the circumstances that no reply had been issued to Ext.P4 notice demanding the amount covered by Ext.P1 cheque consequent on its dishonour under Ext.P2 memorandum. Thus, there is absolutely no merit at all in the contentions advanced by the first respondent and the reason relied on by the first appellate court to reverse the conviction of the first respondent by the trial court is also unsustainable as it is nobody's case that there was sufficient funds in the account of the first respondent to honour Ext.P1 cheque and that but for the stop payment directions issued, Ext.P1 cheque would have been honoured. 11. In view of my discussions above, I conclude that the judgment of acquittal passed Crl. Appeal No.1747 of 2006 -16- by the first appellate court reversing the trial court judgment is improper, illegal and unsustainable and that the trial court judgment convicting the first respondent and sentencing him for offence under Section 138 of the N.I. Act deserves to be restored. 12. In the result, allowing this appeal, I set aside the judgment impugned passed by the Sessions Court, Kollam and restore the conviction and sentence passed against the first respondent by the Judicial First Class Magistrate-I, Kottarakkara. K.P.BALACHANDRAN, JUDGE kns/-