IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 CRL.A.No. 1117 of 2002(A) ------------------------------------------- CC.9/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... APPELLANT/COMPLAINANT: P.J.THOMAS, S/O. JOSEPH, PANACHIMATTATHIL, ELLAMGULAM, KOORALI P.O. BY ADV. SRI.V.B.PREMACHANDRAN RESPONDENTS/ACCUSED: 1. K.C.MATHEW, S/O. CHACKO, KAKKANATTU VANGATHANAM P.O., KALAPPRA, KANJIRAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.LIJI.J.VADAKEDOM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1117 of 2002 --------------------------- JUDGMENT This appeal with leave is filed by the complainant in C.C.No.9/00 on the file of the Judicial First Class Magistrate's Court-I, Kanjirappally. He filed the complaint in the court below alleging that the first respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 2. The allegations in the complaint were that in discharge of a loan availed of by the first respondent/accused during August 1999, he issued Exhibit P1 cheque on 12.10.1999 to the appellant/ complainant and the said cheque, on presentation, was dishonoured by the drawee bank assigning the reason “insufficient funds” in the account of the first respondent to satisfy the said cheque and that despite notice issued intimating dishonour of the cheque and demanding payment of the amount due thereunder, the first respondent has not cared to CRA 1117/02 2 make payment of the amounts either within the statutory period or ever thereafter and thus, he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate took cognizance of the offence and on receipt of summons, the first respondent entered appearance and he was questioned by the learned 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. 4. On the side of the appellant/complainant, he gave evidence as PW1 and got marked Exhibits P1 to P8. On the appellant closing his evidence, the first respondent/accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he admitted receipt of notice caused to be issued by the appellant/complainant CRA 1117/02 3 consequent on dishonour of Exhibit P1 cheque. He also filed a written statement of defence contending that he had not issued Exhibit P1 cheque to the appellant; that on 1.3.1999, he borrowed an amount of Rs.80,000/- from the nephew of the appellant through the intervention of one Odakkal Thomas Joseph and by way of security for the said loan, he issued a signed blank cheque to Joy Mathew, the nephew of the appellant; that he repaid Rs.50,000/- to Joy Mathew on 7.10.1999 and in the presence of Thomas Joseph, Joy Mathew executed Exhibit D2 receipt in his favour; that the present complaint is one filed in collusion with Joy Mathew and the appellant, converting the blank cheque leaf into Exhibit P1, incorporating unauthorisedly the name of the appellant; that the said cheque is not supported by any consideration whatsoever and that the complaint is not maintainable. 5. On the side of the first respondent/accused, he examined Joy Mathew, the nephew of the CRA 1117/02 4 appellant, as DW2 and Thomas Joseph, who is stated to have been the mediator in arranging the loan from DW2, as DW1 and got marked in evidence Exhibits D1 to D3. On the first respondent also closing his evidence, the court below considered the case in the light of the evidence so adduced; held that Exhibit D2 receipt is genuine; that Exhibit P1 cheque is not one issued to the appellant and found the first respondent/accused not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitted him of the said offence under Section 255(1) Cr.P.C. Hence, this appeal with leave by the complainant. 6. It is contended before me by the learned counsel for the appellant that the court below has not properly appreciated the case of the appellant and was being lead away by Exhibit D2, admitted to have been executed by DW2, the nephew of the appellant and has come to the wrong conclusion that CRA 1117/02 5 Exhibit P1 cheque was being issued by the first respondent to DW2 by way of security as a blank signed cheque and is not one issued in discharge of any debt to the appellant; that even on the admissions of DW2, the case of the first respondent should have been found against and that the acquittal of the first respondent, ordered by the court below, is not sustainable. He has taken me through the entire evidence adduced in the case, being a court of first appeal, which can re- appraise the evidence adduced in the case. 7. DW2 is a witness examined by the first respondent to establish his case that DW2 was advancing him Rs.80,000/- and Exhibit P1 was a blank signed cheque leaf delivered by the first respondent to DW2 at that time, by way of security. DW2 has stated in chief examination that he had lent an amount of Rs.80,000/- to the appellant and by way of security he obtained an agreement and a cheque, wherein amount alone had been written. He CRA 1117/02 6 further stated that in the cheque only the amount had been written and his name had not been written. He further stated that he returned an amount of Rs.50,000/- after three months and thereupon he returned the agreement and also executed Exhibit D2 receipt, wherein the cheque leaf number of Exhibit P1 cheque is also made mention of; that the first respondent had repaid the balance amount of Rs.30,000/- as well and that thereupon he returned the cheque also. In cross-examination, DW2 has admitted that while executing Exhibit D2 receipt, he was not having with him the cheque entrusted by the first respondent and that the number of the cheque and other details were being mentioned to him by the first respondent himself. It is also stated by him, when confronted with Exhibit P1 cheque, that the amount of Rs.80,000/- is not written either in figures or in words in Exhibit P1 and that Exhibit P1 cheque had not been handed over to him by the first respondent and further that CRA 1117/02 7 while incorporating the cheque number in Exhibit D2, he was not having the original or a copy of the cheque. 8. Thus, the contentions set up by the first respondent, that Exhibit P1 cheque is one issued by way of security to DW2, the nephew of the appellant, while borrowing an amount of Rs.80,000/- from him and that was being misused by the appellant, in collusion with DW2, fall to the ground. DW2 has not been declared hostile by the first respondent, who examined him on his side to establish his contentions. In fact, the evidence of DW2 has gone against the first respondent, both in chief examination and in cross-examination and apart from the two questions asked in re- examination, no attempt even was made to discredit DW2, seeking permission to have DW2 declared hostile and cross-examined. The result is that evidence of DW2 binds the first respondent. When the evidence of DW2 has, thus, belied the defence CRA 1117/02 8 contention, the evidence of DW1, who is stated to be a mediator, who arranged loan from DW2, does not gain any importance at all and is only to be ignored. The question, thus, is as to whether Exhibit P1 stands established as the cheque issued in discharge of debt as alleged by the appellant, as the first respondent has no contention at all that the statutory formalities required for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act do not stand satisfied or that Exhibit P1 cheque was not being dishonoured for reason of insufficiency of funds in his account to honour the same. 9. It is vehemently contended before me by the learned counsel for the first respondent that though PW1 has alleged in the complaint that the amount of Rs.1,50,000/- was being advanced to the first respondent in August 1999, that case is given a go bye when he gave evidence as PW1 that the amount was being advanced in July 1999; that in CRA 1117/02 9 cross-examination he has further stated that though the amount was being advanced without obtaining any record in proof thereof, as repayment of the amount was promised to be made in three weeks and that it was in August 1999 that the cheque was issued post dating it by five days, but that the date which Exhibit P1 bears is actually 12.10.1999 and further that Exhibit D1 complaint filed by the first respondent against the appellant as also against DW2 would go to show that there is, however, no collusion between DW2 and the first respondent and that the collusion must have been between the appellant and DW2. 10. The fact of the first respondent having filed Exhibit D1 complaint after the institution of the present complaint in the court below by the appellant is no ground to show that there was any collusion between DW2 and the appellant. DW2 had tendered evidence in chief examination itself that he is on enimical terms with PW1 and that stands CRA 1117/02 10 unassailed. The discrepancies in the date of advancing the loan and as regards date when the cheque was issued or the date affixed on Exhibit P1 are minor discrepancies when evidence was being tendered before court after about two years of the transaction and further when the contentions set up by the first respondent in defence are found to be false, there is no justification in attributing much weight to the discrepancy as regards the date made mention of by the appellant as PW1. The first respondent having miserably failed to establish the defence which he attempted to establish by adducing evidence in the case, which suggests further that Exhibit P1 cheque drawn on his account is one issued by him to the appellant and not to DW2, coupled with the evidence of PW1 and the presumption available in favour of the appellant (PW1), who is the payee under the cheque, under Section 139 of the Negotiable Instruments Act proves the case of the appellant. Hence, I have no CRA 1117/02 11 hesitation to hold, in the circumstances, that the first respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act and that he was wrongly being found not guilty of the offence and was being acquitted by the court below. In the result, allowing this appeal, in reversal of the order of acquittal assailed, I find the first respondent/accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convict him thereunder and sentence him to undergo imprisonment for a term of one year and to pay, by way of compensation, an amount of Rs.1,75,000/- to the appellant. 15th January, 2008 (K.P.Balachandran, Judge) tkv CRA 1117/02 12 K.P.Balachandran, J. ---------------------- Crl.A.No.1117 of 2002 ---------------------- JUDGMENT 15th January, 2008