IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 CRL.A.No. 671 of 2003 ----------------------- CC.232/2001 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... APPELLANT: COMPLAINANT ---------------------------------------- KOCHUMOLE MATHEW, THUNDIYIL HOUSE, CHURULIKODE, PATHANAMTHITTA. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: STATE & ACCUSED -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.S.JAYASREE, CHEMBRATHIYIL HOUSE, MYLADUMPARA, KUMBAZHA, PATHANAMTHITTA. R1 BY PUBLIC PROSECUTOR, SRI. C.M. NAZAR R2 BY ADV. SRI.B.RAMAN PILLAI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 671 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2008. Judgment Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. She challenges the order of acquittal passed by the court below, in this appeal. The learned Magistrate held that Ext.P1 cheque was not supported by consideration. It was further held that the complainant had failed to prove that the accused had borrowed money from her and that it was in discharge of the said debt that Ext.P1 cheque was issued by the accused. 2. The case of the complainant was that the accused had borrowed a sum of Rs.80,000/- from her. In discharge of the said debt Ext.P1 cheque was issued to her. When the cheque was presented, it was dishonoured due to insufficiency of funds in the account of the accused. In response to Ext.P4 demand notice, the accused sent Ext.P7 reply notice denying not only the liability but also any money transaction with the complainant. 3. The complainant got herself examined as Pw.1 and Exts.P1 to P9 were marked on her side. Dws.1 and 2 were examined on the side of the accused. The defence set up by the accused was that she had had no money transaction with the complainant as alleged. According to the accused she had borrowed a sum of Rs.20,000/- from one Mr.Ranjith. At the time of borrowal she had handed over a blank signed cheque to Mr.Ranjith as security. The entire amount was repaid to Mr. Ranjith through complainant's husband who had Crl.A.No.671/2003. 2 in fact taken back the signed cheque from Mr.Ranjith as instructed by the accused. 4. It was admitted by the accused that she had been maintaining an illicit relationship with the husband of the complainant during the relevant period. She had reposed faith and confidence in her lover and it was therefore that she had repaid the amount to Ranjith through him. Complainant's husband had taken back the cheque from Ranjith and kept it with him. The accused did not choose to demand it back from her lover at that time because of the intimate relationship with him. But later the relationship got strained and both of them fell apart. The complainant's husband became revengeful and he had instructed his wife to launch the present prosecution against the accused. 5. The accused had examined her daughter as Dw.1 and a headload worker as Dw.2 to substantiate the contentions raised by her. Dw.1 who was 19 years of age at the time of her examination deposed before the court that she was aware of the illicit relationship between her mother and the husband of the complainant . She further stated that she had occasion to witness the money transaction between her mother and Mr.Ranjith. She also deposed that she had been helping her mother in her personal matters like writing cheques etc. 6. Dw.2 gave evidence that he knew about the money transaction between the accused and Mr. Ranjith. Dw.2 stated that he was aware of the illicit relationship between the accused and the husband of the complainant. He further stated that the husband of the complainant used to come to the shop of the accused and take care of Crl.A.No.671/2003. 3 the cash counter. According to Dw.2 a notebook was entrusted by the complainant's husband to him containing the cheque. But when the accused and her lover fell apart, the cheque was taken back by Mr.Mathew Varghese, the husband of the complainant. Obviously Dw.2 was referring to the cheque which the accused had allegedly handed over to Mr. Ranjith. But DW.2 admitted in the course of his cross examination that the cheque which was shown to him was not the one which he had seen in the hands of the husband of the complainant. 7. The learned Magistrate accepted the testimonies of Dw.1 and 2 and held that the complainant had failed to prove that Ext.P1 cheque was supported by consideration. In other words, the learned Magistrate held that the presumption available under Section 118 of the Act was not available in favour of the complainant. Similarly the benefit of the presumption available under Section 139 was denied to the complainant. In short, the learned Magistrate disbelieved Pw.1 and accepted the defence set up by the accused. 8. In this context it may be pertinent to note that the accused had not chosen to examine Mr. Ranjith in order to prove that she had had money transaction with him and it was in connection with that transaction that Ext.P1cheque happened to be handed over to him. The evidence of Dws. 1 and 2, in my view, did not in any way advance the defence case. No reliance can be placed on the evidence of these two witnesses. 9. Having perused the impugned order I have no hesitation to hold that the learned Magistrate had proceeded at a palpably faulty Crl.A.No.671/2003. 4 tangent and arrived at unsustainable conclusions. In my view the complainant had established her case satisfactorily. Significantly the accused did not have a case that she had not signed Ext.P1 cheque. She had set up a defence which was not substantiated in any manner known to law. Therefore the order of acquittal is liable to be set aside. I do so. 10. The accused is found guilty of the offence punishable under Section 138 of the Act. But since both the complainant and the accused are ladies, I am of the view that an opportunity can be given to them to explore the possibility of a settlement. Therefore for deciding the quantum of sentence to be imposed on the accused, the matter is remitted to the trial Court, which shall pass appropriate orders after hearing the accused. Parties shall appear before the court below on August 6, 2008. A.K. Basheer Judge. an.