IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 932 of 2002() --------------------------------- ST.9400/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT ---------------------------------------- UNNIKRISHNAN, AGED 36, S/O. BHASKARA MENON, CHAKKAMBATH HOUSE, NADAVARAMBU DESOM, VELOOKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.G.SREEKUMAR (CHELUR) RESPONDENT/ACCUSED AND STATE OF KERALA: ------------------------------------------------------------------------ 1. SAJITH, AGED 30 , S/O. SREEDHARAN, KADALIKKATTIL HOUSE, KADUPPASSERY DESOM, KADUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.THOMAS JOHN AMBOOKEN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 932 OF 2002 = = = = = = = = = = = = = = = Dated this the 26th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed in S.T.9400/08 of the Judicial First Class Magistrate- Irinjalakuda. It is the case of the complainant that the accused had borrowed a sum of Rs.40,000/- and towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment returned with the endorsement insufficiency of funds. Statutory notice was issued for which no reply was sent and as the money was not paid prosecution has been launched u/s 138 of the Negotiable Instruments Act. From the suggestion put to PW1 the defence appears to be that of a total denial of the transaction. 2. PWs.1 and 2 were examined and Exts.P1 to P8 were marked. The learned trial judge acquitted the accused on the grounds that, (1) there is no evidence regarding the execution of Ext.P1. (2) that there is an endorsement on the Crl.A. 932 OF 2002 -2- back of the cheque cash received and lastly that there is no demand in the notice which is sent by the complainant. 3. I had perused the evidence of PWs. 1 and 2 and also the documents produced in this case. Learned counsel for the appellant had taken me through the evidence of PW1. It is the case of PW1 that the amount was borrowed on 10.5.98 and the cheque was issued on 11.6.98. It is clearly deposed on that date that the accused signed the cheque and had given it to the complainant. In the cross examination also he would say that the accused had brought Ext.P1 cheque and given it to him. The evidence of PW1 appears to be convincing and acceptable on the other hand even one is not able to understand what is the defence of the accused. So when the cheque issued from the account of the accused is produced and the complainant comes before Court and deposes as to the transaction evidence in support of the same, merely speaking suggestive questions, will not be sufficient to discard the evidence of PW1 and hold that the execution is not proved. Here the complainant has spoken about the execution of the Crl.A. 932 OF 2002 -3- cheque and he had also spoken about the advancement of the amount. A notice was issued which remained unreplied as well. So I do not agree with the learned Magistrate in her decision that execution of Ext.P1 is not proved. On the contra the materials available only point out in one direction, that is, that Ext.P1 is proved and it is issued towards the discharge of the liability. 4. The next point posed by the learned Magistrate is properly explained by PW2. When a Bank to which a cheque is presented sends it for encashment to the other Bank there is a banking practice that the said Bank endorses as contents received or cash received. There is no materials or case for anybody that the present cheque has been honoured by the Bank to which it is issued. So the evidence of PW2 that it is in the conduct of business of the Bank has to be accepted and the rejection of the said evidence by the learned Magistrate also is incorrect. The learned Magistrate has not really chosen to read the notice at all. From the copy of the notice it is very clear that the averment that Rs.40,000/- had been advanced Crl.A. 932 OF 2002 -4- and it is demanded back is therein the notice. So the said finding of the learned Magistrate also has to be set aside. Therefore from the materials available it has to be held that the complainant has succeeded in proving that the accused had borrowed the amount and towards the discharge of the liability had issued Ext.P1 cheque but when presented for encashment it was dishonoured and statutory notice has been issued. There is no repayment and so a prosecution u/s 138 of the N.I. Act is perfectly maintainable and so I find the accused guilty under the Section. 5. Now turning to the question of sentence. As per the amended provisions of the N.I. Act any Court of competent jurisdiction is entitled to award double the amount of cheque as fine. But suffice to say, it will be sufficient if the cheque amount is ordered as fine in this case. So instead of sending him to jail, I feel justice can be met by directing the accused to pay the fine within a stipulated time and in default to undergo simple imprisonment for a period of two months. Crl.A. 932 OF 2002 -5- 6. In the result the appeal is disposed of as follows. (1) The order of acquittal is set aside and the accused is found guilty u/s 138 of the Negotiable Instruments Act and is convicted thereunder. (2) The accused is sentenced to pay a fine of Rs.50,000/- which on realisation shall be disbursed to the complainant on proper application and in case of default of fine the accused shall undergo simple imprisonment for a period of two months. (3) The accused shall pay the fine on or before 31.8.2009 failing which the lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 932 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 932 OF 2002 = = = = = = = = = = = J U D G M E N T 26th June, 2009 Crl.A. 932 OF 2002 -7-