IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.A.No. 786 of 2002() ---------------------------------- CC.203/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT(S): COMPLAINANT ------------------------- C.L.DAVIS, S/O. LAZAR, CHIRIANKANDATH HOUSE, PULIYANNOOR, VELLATTANJOOR P.O. BY ADVS. MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENT(S): ACCUSED AND STATE ---------------------------- 1. P.SHEEBA W/O. R. PRAKASH, SHIJO BHAVAN, NETTIKULAM, VADASSERIKONAM P.O., VARKALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY MR.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR R1 BY ADV.SMT.BINDU SREEKUMAR FOR R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.786 OF 2002 ------------------------------ Dated this the 26th day of May, 2009 JUDGMENT This criminal appeal is preferred against the order of acquittal in C.C.No.203/2000 of the JFCM, Kunnamkulam. It is the case of the complainant that he along with his friend Mukundan had given Rs.1,30,000/- when the accused and her husband promised to arrange a visa to go abroad. The visa was arranged and they went by air to Qatar airport from where they were sent back stating that the visa is not proper. Thereafter, they approached the accused and the accused in discharge of the liability, issued a cheque for Rs.1,30,000/= which when presented for encashment, returned with the endorsement of insufficiency of funds. Statutory notice was issued for which, no reply was sent. The trial court basing on the alleged admission of PW1 and Ext.D1, came to the conclusion that the transaction was between the husband of the accused and the complainant and therefore no prosecution will lie and the cheque should 2 Crl.A.NO.786/02 have been issued as contended by the accused. It is against that decision, the complainant has come up in appeal. The point arises for determination is whether there are any grounds to interfere with the decision rendered by the court below. 2. Point: It is the definite case of the complainant that he along with his friend Mukundan had paid a sum of Rs.1,30,000/= to the accused and her husband for the purpose of arranging a visa. Though, a visa was arranged, they were sent back from the Gulf airport finding that it was not a proper one. Thereafter, they approached the accused and towards the discharge of the liability, she had issued a cheque. But, on the other hand, the defence would contend that there was no contract or transaction between the accused and the complainant and for the amount due from the husband they had exerted coercion and got a cheque executed. So, the crux of the question depends upon what is the nature of the transaction. The fact that the 3 Crl.A.NO.786/02 complainant and Mukundan had approached them for a visa and that visa was arranged are all admitted facts. But the question is whether it was done by the accused or her husband exclusively. If it was done by the husband exclusively, then there was no transaction between the complainant and the accused and the decision of the court below has to be upheld, otherwise, it requires interference. 3. The evidence tendered is that of PW1 and the document marked is Ext.D1. Unfortunately, Ext.D1 is not put to the complainant at all and it is not proved by examining the person who is alleged to have written it or to whom it is addressed. So, it is not a proper proof. Even if for argument sake Ext.D1 is looked into, it does not throw any light regarding the absence of a contract between the accused and the complainant. On the contra, it is addressed to the husband. The inside portion would show that the accused is addressed first and the conduct of the accused also is referred to and there is only a passing reference to intimate her husband about their wishes. So, if she has nothing to 4 Crl.A.NO.786/02 do why should a letter be written like this will be a question. Then turning to the evidence of PW1, the complainant in cross examination has categorically deposed that the amount has been received by the accused and her husband, who was in Gulf country at that time. He had also spoken about the sathyagraha performed to get back the money. No where in the examination there is any evidence to indicate that there was a contract only with Prakash. So, the basis of the finding by the court below on Ext.D1 and the evidence of PW1 is totally wrong. Further it has to be remembered that if a person exerts coercion and performs sathyagraha in front of the house and gets a cheuqe written in that fashion, under ordinary circumstance what one would expect from a person is to immediately lodge a complaint or at least send a lawyer notice to show that act. It is absent in this case. Further when a notice was issued to start the initiation under Section 138, then also no reply is sent which also would indicate that all is not well with the case of the accused. I am conscious that no court can compel an accused to come 5 Crl.A.NO.786/02 and depose before the court. Then what has to be analysed is the materials available before the court. Here PW1 has spoken about the transaction. Ext.D1 does not indicate anything contra to the contention of the complainant. The evidence is not shaky or unreliable. It has got intrinsic reliability and inherent probability. Therefore, the evidence of PW1 is sufficient to establish the case of the prosecution. The circumstance relied on by the court below is without any materials at all and contrary to the documents available before the court. Therefore, I set a side the order of acquittal passed by the court below. Admittedly, the cheque has been presented for encashment. It has been dishonoured and necessary statutory compliance is there to initiate proceedings. From the evidence of PW1, the transaction also is proved. Therefore, I find the accused guilty under Section 138 of the N.I.Act. Now regarding the sentence. The accused is a lady and the whole case is on the basis of a visa which did not yield any favour to the complainant and his friend, Mukundan. If the money is paid back, they also will be 6 Crl.A.NO.786/02 satisfied. Therefore, in stead of sending this lady to jail, I feel imposition of fine will be sufficient. Therefore, the appeal is disposed of as follows: i. The order of acquittal passed by the court below is set aside. ii. The accused is found guilty under Section 138 of the N.I.Act. iii. The accused is convicted and sentenced to pay a fine of Rs.1,30,000/= which on realisation shall be disbursed to the complainant on proper application. The accused shall pay the fine on or before 25.7.2009 and in case of default, she is directed to undergo imprisonment for a period of two months. The Criminal Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE cl 7 Crl.A.NO.786/02 M.N. KRISHNAN, J. CRL.A.NO.786 OF 2002 JUDGMENT 26th day of May, 2009 8 Crl.A.NO.786/02 beat