IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 CRL.A.No. 191 of 2001(A) ----------------------------------- CC.143/1996 OF THE JUDICIAL FIRST CLASS MAGISTRATE, PARAVOOR. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ K. ANIL KUMAR, PROPRIETOR, SAI GARMENTS, ANDAMUKKOM, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR. RESPONDENTS/ ACCUSED & STATE: ----------------------------------------------------- 1. ANIL, PROPRIETOR, SHAJITH TEXTILES AND GARMENTS, VENJARAMMOODU.P.O., THIRUVANANTHAPURAM - 685 607. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED FOR R2, ADV. SRI.M.SREEKUMAR FOR R.1, ADV. SRI.M.HARIKUMAR FOR R.1. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V. GIRI, J. ------------------------------- CRA.NO. 191 of 2001 --------------------------------- Dated this the 26th day of August, 2008 JUDGMENT The complainant in CC.No.143/1996 on the files of the JFCM Court, Paravoor is the appellant herein. The complaint was instituted on the allegation that the accused had borrowed from the complainant an amount of Rs.1,25,000/- on 21.1.1995 and for repayment of the same had issued Ext.P1 cheque bearing the same date. The cheque was presented for collection and it was dishonoured for insufficiency of funds. Thereupon Ext.P4 notice was sent on 7.2.1995. It was received by the accused and was neither replied nor payment of the amount effected and hence the complaint was filed alleging that the accused has committed an offence under section 138 of the Negotiable Instruments Act. 2. The accused entered appearance and pleaded not guilty. Going by the stand taken in the 313 statement of the accused and in the examination of PW1, the defence set up by the accused is to the effect that there were previous transactions between the parties that the cheque in question was issued as a CRA.191 /2001 2 blank cheque, as a security when some goods were purchased by the accused from the complainant. It was not issued for discharge of any liability. The court below, essentially on the premise that Ext.P1 cheque bearing dated 21.1.1995, the date on which the complainant himself alleges that the complainant borrowing money proceeded to hold that the case of the complainant does not seem to be believable. The court below found that no person would have issued a cheque on 21.1.1995 after borrowed money for the same amount on the same day. This inference was drawn on the premise that the complainant himself had stated that the accused told him that he has requisite fund in the bank. The accused was acquitted and hence this appeal. 3. I heard learned counsel for the appellant Sri.S.Santhosh Kumar and the learned counsel for the respondents. 4. A reading of the complaint as also the evidence of PW1 would show that the case of the complainant was that the complainant and the accused had previous acquaintance with each other. They had previous transactions also. The accused had come to the shop of the complainant and wanted an amount CRA.191 /2001 3 of Rs.1,25,000/-. The complainant had the collections for the past one week with him and he gave the amount. According to the complainant the accused had mentioned to the complainant that the cheque can be cleared within two or three days. 5. I find nothing strange in the evidence of PW1. The transaction as spoken to by him is a fairly ordinary transaction. The statement apparently made by him as spoken to by the complainant does not have any unnatural angle as suggested by the court below. All that the complainant suggested was that the accused told him that the cheque will be cleared within two or three days. This is quite possible. The accused might have required the amount urgently. Going by the fact that they were previous acquaintances, there was nothing wrong in the complainant handing over the cash. Since the accused might have required the amount only for a few days he could very well said that the cheque would be cleared within the next few days. There is nothing strange in the accused issuing a cheque dated 21.1.1995 on which date he is stated to have borrowed money from the complainant. 6. The statutory presumption that the complainant is CRA.191 /2001 4 entitled to draw under section 139 of the Negotiable Instruments Act has not been given due importance by the court below. But what is most telling in the circumstances is the fact that inspite of receipt of Ext.P4 notice the accused did not care to give any reply. The specific case of the complainant in the notice also is that the accused had borrowed Rs. 1,25,000/- and issued a cheque in discharge of the said liability. If this is clearly inconsistent with the actual state of affairs as contended by the accused, the most natural reaction would have been to send a reply notice. That was not done. 7. Going by the cross examination of PW1 that there were apparently transactions even in September, 1995 between the complainant and the accused, the accused did not think it strange to have any business dealing with the complainant even after receipt of Ext.P4 notice issued in this case. In fact the suggestion made on behalf of the accused is that portion of the amount was repaid after receipt of the notice. I do not find any reason whatsoever to disbelieve the version given by PW1. 8. I am of the view that the conclusion arrived by the court below on appreciation of the evidence adduced by the parties is CRA.191 /2001 5 clearly unsustainable. The relevant circumstances have not been correctly appreciated by the court below. The accused must be found to have committed the offence under section 138 of the Negotiable Instruments Act. For all these reasons, the appeal is allowed. The order of acquittal is set aside. But I think it is appropriate that a suitable sentence would be imposed by the court below. Accordingly the case is remanded to the court below for the limited purpose of imposing sentence on the accused for the offence under section 138 of the Negotiable Instruments Act. The parties shall appear before the court below for this purpose on 3.11.2008. The LCR shall be transmitted to the court below within two weeks. V. GIRI, JUDGE. pmn/ CRA.191 /2001 6