IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 CRL.A.No. 890 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.213/2004 Dated 22/03/2004 CC.1759/2001 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT(S): COMPLAINANT ------------------------- S.SAHADEVAN, PHOTO HOUSE, Y.M.C.A. JUNCTION, CHITTOOR ROAD, KOCHI 35. BY ADV. SRI.K.C.ELDHO RESPONDENT(S): ACCUSED AND STATE. --------------------------------- 1. TOMY MATHEW, PADINJARE PEEDIKAYIL HOUSE, EDAMARUKU P.O., MELUKAVUMATTOM, PALA, KOTTAYAM DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.P.B.ASOKAN FOR R1 SRI.SHERRY J. THOMAS R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON 03/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 890 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 1759 of 2001 on the file of Judicial First Class Magistrate Court -I, Kochi against the judgment of acquittal of the accused dated 7.1.2004. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of N.I. Act. 2. The case of the appellant/complainant is that the first respondent borrowed a sum of Rs. 4 Lakhs from the appellant and in due discharge of the said liability, the first respondent issued a cheque dt.1.6.2000 drawn at Meenachil East Urban Co-operative Bank Ltd., Kalathukadavu Branch. Crl.A. No. 890 of 2004 2 When the cheque was presented by the appellant through his bank, it was returned for the reason ' not arranged for' as per memo dt. 6.10.2000. Inspite of the issuance of the notice as contemplated under Section 138 of the N.I. Act, the amount was not paid and hence the complainant filed the complaint. 3. In the Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to P6 were marked. On the side of the accused Dws. 1 to 3 were examined and Exts.D1 and D2 were marked. The Learned Magistrate, on considering the evidence, found that there is no satisfactory and convincing evidence to show that the cheque was issued by the accused in favour of the complainant for the discharge of a legally enforceable debt owed by the accused and hence the accused was found not guilty under Section 138 of the N.I. Act and he was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal, the complainant filed this appeal. Crl.A. No. 890 of 2004 3 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and the accused was not able to rebut the presumption under Section 139 of the Act and as such the court below ought to have convicted the accused under Section 138 of the N.I. Act and should have imposed suitable sentence. The learned counsel for the appellant submitted that the accused did not send any reply to the notice issued by the complainant before the filing of the complaint and only after the filing of the complaint a reply was issued by the accused, which is only an after thought. 6. The learned counsel for the appellant submitted that DW1 deposed that he is not aware of the transaction between the Crl.A. No. 890 of 2004 4 accused and the complainant. The learned counsel further submitted that the court below ought to have found that DW2 is a Partner of the share business of the accused and as such he is an interested witness. The learned counsel for the first respondent supported the judgment of the court below. 7. The complainant was examined as PW1. PW1 deposed that the accused issued Ext.P1 cheque for Rs. 4 lakhs towards the amount due to him from the accused. When that cheque was presented by PW1 for encashment, it was dishonoured for the reason 'not arranged for'. Ext.P2 is the dishonour memo and Ext.P3 is the intimation. PW1 sent a lawyer notice to the accused, intimating the dishonour of the cheque and demanding the amount, which was received by the accused. Ext.P4 is the copy of the lawyer notice and Ext.P5 is the receipt. Ext.P6 is the postal acknowledgment. PW1 deposed that inspite of receipt of the notice, the accused did not pay any amount. Crl.A. No. 890 of 2004 5 8. According to the accused, he had not issued Ext.P1 cheque to the complainant. For proving his case, the accused himself was examined as DW3. He deposed that in 1993 one Sesil Joseph Kondodi and Jesil Joseph Kondodi joined as Partners in the share business conducted by him under the name and style 'Alfred and Company'. In 1994 both of them left the Partnership firm and at that time there was an understanding to give an amount of Rs.6,00,000/- to them as their share of profit. Out of the said amount of Rs. 6 lakhs, Rs. 4.5 lakhs was given to them at the time of their leaving the firm. Towards the balance amount due to them, he had issued two blank signed cheques as security. He further stated that Ext.P1 was having his signature only. The other writings were not written by him. 9. According to him, he paid the balance due to Sesil Joseph and Jesil Joseph during the period 1994 - 1996. According Crl.A. No. 890 of 2004 6 to him, in 1996 he paid an amount of Rs. 1,00,000/- in the presence of DW1. On demanding back the cheque, he was told that Jesil was not in station and the cheque is with him. It was promised that the cheque will be returned to him on a later date. Again when he demanded the cheque, they insisted for Rs.1,00,000/- more. Thereafter he received the lawyer notice. On receipt of the notice, he issued a reply and the copy of the same is Ext.D1. Ext.D2 is the postal acknowledgment card showing the receipt of the notice by the counsel for the complainant. 10. DW1 is a Chartered Accountant practicing at Erakulam. He deposed that the accused and one Alfred conducted a share broker business in the name and style 'Alfred and Company' and in 1993 one Jesil Joseph and Sesil Joseph joined as Partners and when they retired from that Partnership in 1994, the accused had to pay Rs. 6 lakhs to them and out of that amount the Crl.A. No. 890 of 2004 7 accused gave Rs.4.5 lakhs to them and for the balance amount of Rs. 1.5 lakhs he gave two blank signed cheques. DW1 deposed that in 1996 the accused came to his office and called him. He accompanied the accused and they went to the office of Jesil Joseph and the accused gave Rs. 1 lakh to him and when the accused demanded back the cheque, he told them that the cheque was with his brother and it will be returned subsequently. DW1 identified Ext.P1 as the blank signed cheque given by the accused to Jesil Joseph and Sesil Joseph. 11. DW2 is also a Chartered Accountant, who gave similar version regarding Ext.P1 cheque. As observed by the learned Magistrate, nothing is brought out to discredit the testimony of Dws. 1 and 2. The learned Magistrate found that in Ext.P1 cheque the ink used for signing it is different from the ink used for writing the other details like date, payee's name and amount. Crl.A. No. 890 of 2004 8 Since the accused has adduced satisfactory evidence to rebut the presumption under Section 139 of the N.I. Act, the complainant ought to have examined Sesil Joseph or Jesil Joseph to disprove the case of the accused. In the absence of such evidence, the learned Magistrate is fully justified in finding that there is no satisfactory and convincing evidence to show that the cheque was issued by the accused to the complainant for the discharge of a legally enforceable debt. 12. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm