IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 CRL.A.No. 383 of 2001 CC.439/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT/COMPLAINANT: SADANANDAN S/O THIRUVATHRA MADHAVAN P.O. THIRUVATHRA THRISSUR DISTRICT BY ADV. SRI.RAJIT RESPONDENT/ACCUSED: K.S.SUNESHKUMAR S/O KUTTAMPARAMBIL SEKHARAN THAMBANKADAVU.P.O. THALIKULAM THRISSUR DISTRICT BY ADV. SRI.K.S.SUNESH KUMAR,RESPONDENT THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON 19/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.383 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February 2008 JUDGMENT The complainant in a prosecution under Section 138 of the N.I. Act has preferred this appeal against the judgment passed by the trial court acquitting respondent/accused on the ground that the complainant had not established due execution of the cheque to enable him to get the benefit under Section 139 of the Act. 2. The case of the complainant in brief was that the accused had borrowed a sum of Rs.1,50,000/- from him on January 7, 1998 for his business purpose. Thereafter when demand was made for repayment of the amount, the accused had issued Ext.P1 cheque dated April 7, 1998 in 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 a statutory notice was issued demanding payment, accused had failed to repay the amount. Hence the complaint. 3. Before the trial court, the complainant was examined as PW1 and his two witnesses were examined as PW2 and 3 and Exts.P1 to P10 were also marked on his side. The accused got Crl.A.No.383 OF 2001 :: 2 :: himself examined as DW1. The learned Magistrate, after an elaborate consideration of the oral and documentary evidence on record, held that a blank signed cheque obtained from him under threat was misused by the complainant was more probable. In other words, the learned Magistrate accepted the defence case that Ext.P1 cheque was not supported by consideration. 4. The case of the accused before the court below was that he had never borrowed Rs.1,50,000/- from the complainant as alleged. According to the accused, he had borrowed a sum of Rs.10,000/- from the complainant in January 1, 1998. But according to him, he had discharged the said debt. Curiously, the accused had not adduced any evidence to substantiate the above contention. It is true that he got himself examined as DW1. But in his deposition, he had only stated that he had not borrowed any money from the complainant. He had stated that Ext.P1 cheque was obtained by the complainant from him under threat. He did not write any amount in the cheque. But significantly he admitted that he had put his signature in the cheque. In cross examination, he conceded that he had not filed any complaint before any Crl.A.No.383 OF 2001 :: 3 :: authority regarding the incident in which he was compelled to sign Ext.P1 cheque. He also admitted that he had been running a chitty business. But he denied the suggestion that he was involved in several litigations in connection with that business and that he owed money to the subscribers of the chitty. Reference has been made to the defence case rather elaborately only to highlight the fact that the accused has totally failed to substantiate his contentions. He had vaguely stated that he had borrowed money from the complainant on various occassions and repaid the same in instalments. 5. I am afraid the above contention cannot be accepted especially in the absence of any corroborative evidence. The accused having admitted his signature in Ext.P1 cheque, the presumption under Section 118 was available in favour of the drawee. More importantly, the presumption available to the drawer under Section 139 of the Act had not been discharged by the accused. The complainant had specifically stated that the accused had borrowed Rs.1,50,000/- from him on January 7, 1998 and that he had issued Ext.P1 cheque in discharge of the said debt. Crl.A.No.383 OF 2001 :: 4 :: The mere fact that the complainant had admitted in his cross examination that he did not know who had entered the figure in the cheque will not be sufficient to discard the case of the complainant especially since the accused had admitted his signature in the cheque. 6. The learned Magistrate had taken the view that the version given by the complainant cannot be accepted since the writings in the cheque were in different inks and that going by the provisions contained in Section 20 of the Act the case of the accused was more probable and that the complainant did not have any authority to make entries in the instrument. In Moideen v Johny [2007 (2) KLT S.N.15] this court has held that even if a blank cheque is issued by one person to another, it gives authority to the person to whom it is issued to fill it up and present it for encashment. 7. Having regard to the entire facts and circumstances of this case, I am satisfied that the complainant had satisfactorily established his case. The accused had totally failed to discharge the burden cast upon him. Therefore, the order of acquittal passed Crl.A.No.383 OF 2001 :: 5 :: by the court below is liable to be set aside. I do so. The accused is found guilty under Section 138 of the Act. 8. Since the respondent has not appeared before this court though he was served with notice, I am of the view that the case has to be remitted to the trial court. The court below shall pass appropriate orders on sentence after hearing the respondent/accused. Therefore, the appeal is allowed. The case is remitted to the court below, which shall dispose it of as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. (A.K.BASHEER, JUDGE) jes Crl.A.No.383 OF 2001 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.383 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 19th Feb. 2008