IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 CRL.A.No. 195 of 2001 CC.153/1998 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... APPELLANT/COMPLAINANT: M.GOPINATHAN AGED 32 YEARS S/O RAGHAVAN NAIR PULINKARAVEED, PEROLE P.O. NILESHWAR BY ADV. SRI.M.THAMBAN SRI.K.RAJEEVAN SRI.DILIP MOHAN SMT.T.SUDHAMANI RESPONDENTS/ACCUSED & STATE: 1. K.V.SUKUMARAN AGED 37 YEARS S/O AMBU KARNAMOORTHI STAFF, NORTH MALABAR GRAMIN BANK CHERUVATHUR BRANCH P.O. CHERUVATHUR 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.AMJETH ALI SRI.SURESH KUMAR KODOTH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/08, THE COURT ON 17/01/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.195 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The appeal is directed against the judgment of acquittal passed by the court below holding that the complainant had not proved that Ext.P1 cheque was drawn on the account of the accused or that it was dishonoured due to insufficiency of funds in the account of the drawer. 2. The case of the complainant was that the accused had borrowed a sum of Rs.60,000/- from him and issued Ext.P1 cheque dated December 15, 1997 towards discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though Ext.P4 statutory notice was issued demanding payment, the accused had failed to repay the amount. Hence the complaint. 3. Complainant was examined as PW1 and Exts.P1 to P5 were marked on his side. There was no oral or documentary Crl.A.No.195 OF 2001 :: 2 :: evidence on the side of the defence. 4. The complainant when he was examined as PW1 had categorically stated that the accused had issued Ext.P1 cheque towards repayment of the sum of Rs.60,000/- borrowed from him. Exts.P2 and P3 memo issued by the Bank clearly indicated that the cheque had been dishonoured due to insufficiency of funds in the account of the accused. Ext.P4 which is the true copy of the demand notice issued by the complainant did not yield any result. 5. Curiously, the learned Magistrate proceeded to hold that the complainant had not established that Ext.P1 cheque was drawn on the account of the accused in the Cheruvathur branch of the North Malabar Gramin Bank. He further proceeded to hold that the complainant had not proved that Ext.P1 cheque was returned due to insufficiency of the funds in the account of the accused. Obviously, the learned Magistrate had not bothered to peruse Exts.P2 and P3 memos. He had totally forgotten the rudiments of Criminal jurisprudence. 6. The accused did not have a case that Ext.P1 cheque was not signed or issued by him nor did he have a case that it was Crl.A.No.195 OF 2001 :: 3 :: not drawn on his account. The specific suggestion put to PW1 on behalf of the accused in the course of cross examination of PW1 was that Ext.P1 cheque which was handed over to one Ramakrishnan in connection with a financial transaction had been misused by the complainant. Significantly the accused, while questioned under Section 313 of the Code of Criminal Procedure, had only stated that he had issued a blank signed cheque. 7. It is significant to note that the accused is working in North Malabar Gramin Bank at Cheruvathur. Therefore, it is totally incomprehensible as to how the learned Magistrate could conjure certain outrageous propositions to hold that the complainant had failed to prove that Ext.P1 cheque was drawn by the accused on his account and that it was dishonoured due to insufficiency of funds in his account. I refrain from making any further comment about the reasoning of the learned Magistrate in the case. 8. Having heard learned counsel for the parties and having perused the materials available on record, I have no hesitation to hold that the order of acquittal passed by the learned Crl.A.No.195 OF 2001 :: 4 :: Magistrate is totally illegal and unjustified. Therefore, the judgment of acquittal is set aside. On the basis of the materials available on record, I have no hesitation to hold that the accused is guilty of the offence punishable under Section 138 of the N.I. Act. Accordingly, he is found guilty. 9. Ext.P1 cheque was issued in the year 1997. The accused has managed to withhold payment of the cheque amount borrowed by him for nearly a decade. Learned counsel submits that the accused is prepared to pay off the liability, if a short time is granted to him. Learned counsel for the complainant submits that the anxiety of the complainant is only to get back his money with adequate compensation. 10. In the peculiar facts and circumstances, I am satisfied that some leniency can be shown in the matter with regard to sentence. The accused/respondent No.1 is convicted and sentenced to undergo imprisonment for one day and to pay compensation of Rs.90,000/- under Section 357(3) of the Code of Criminal Procedure; and in default of payment he shall suffer simple imprisonment for four months. Crl.A.No.195 OF 2001 :: 5 :: The accused shall appear before the court below on February 5, 2008. On his appearance, the learned Magistrate shall ensure that he suffers imprisonment till the rising of the court. If the accused remits the sum of Rs.90,000/- on his appearance, Rs.85,000/- shall be released to the complainant. Appeal is allowed. (A.K.BASHEER, JUDGE) jes