IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 CRL.A.No. 1838 of 2004() ------------------------ CC.598/2001 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... APPELLANT(S): COMPLAINANT: -------------------------- V.PEETHAMBARAN, PUTHEZHATH HOUSE, PUTHUPPALLY NORTH, PUTHUPPALLY P.O. KAYAMKULAM. BY ADV. SRI.BINDU SREEKUMAR RESPONDENT(S): ACCUSED AND STATE: --------------------------------- 1. RADHAKRISHNAN, SHOWROOM, NEAR GURUMANDIRAM, KAPPIL, KIZHEDAN, KIRHSNAPURAM P.O. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.V.JAYACHANDRAN FOR R1 R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON 14/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1838 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 598 of 2001 on the file of the Judicial First Class Magistrate, Kayamkulam. 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 the N.I. Act. 2. The case of the complainant briefly is as follows. On 10.12.2000 the first respondent borrowed a sum of Rs.54,000/- from the appellant. When the appellant wanted back the amount, the first respondent gave him a cheque dt.15.1.2001 drawn on the State Bank of Travancore, Kayamkulam branch. The appellant sent the cheque for collection through the Alappuzha District Co-operative Bank, Kayamkulam branch. But the cheque was dishonoured due to insufficiency of funds in the account of the Crl.A. No. 1838 of 2004 2 accused. On 9.2.2001 the appellant got back the dishonoured cheque along with the dishonour memo. On 22.2.2001 he sent a lawyer notice to the accused demanding the amount under the cheque. On 26.2.2001 the first respondent received the notice, but he did not pay the amount due to the appellant. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the defence side, the accused was examined as DW1 and Exts.D1 to D5 were marked. The learned Magistrate, on considering the evidence, found that the accused has succeeded in proving the defence case and he was acquitted under Section 255(1) Cr.P.C. Against that judgment the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the when the accused was examined as DW1 he admitted his signature in Ext.P1 cheque and that it was handed over to the complainant. The learned Crl.A. No. 1838 of 2004 3 counsel for the appellant submitted that the other two transactions between the accused and the complainant has no connection with the present transaction. The learned counsel further submitted that the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act and the court below is not justified in acquitting the accused. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., he stated that he was a chitty subscriber in Souparnika Enterprises, Kayamkulam, of which the appellant was a Partner. At the time when he received the chitty amount, as required by the appellant, he gave a signed blank cheque as security for the payment of the future instalments of the chitty. But the appellant, betraying the confidence reposed on him by the accused, filled up the cheque at his choice and sent the same for collection, got it back dishonoured and initiated proceedings against him. Crl.A. No. 1838 of 2004 4 7. The accused was examined as DW1. He deposed that he was a subscriber to the chitty conducted by the complainant in the name and style 'Souparnika Enterprises' and Ext.D1 series are the receipts issued to him in that transaction. DW1 deposed that the complainant conducted another unregistered chitty and that Ext. D2 is the hand diary issued in that chitty. The learned Magistrate did not give any evidentiary value to Ext.D2 as it does not contain anything to indicate that it was issued by the complainant or Souparnika Enterprises. Ext.D3 is the copy of the plaint in O.S.No. 179 of 2001 on the file of the Munsiff Court, Kayamkulam filed by the complainant as plaintiff against the accused as defendant for realisation of Rs.50,000/- based on a promissory note dt. 19.4.1999. 8. Ext.D5 is the copy of the complaint filed by the complainant against the accused as C.C.No.243 of 2001 on the file of the J.F.C.M., Kayamkulam under Section 138 of the N.I.Act in connection with the cheque for Rs.50,000/- dt.15.1.2001 of Federal Bank Ltd., issued by the accused in favour of the complainant. Ext.D4 is the copy of the Crl.A. No. 1838 of 2004 5 order showing that C.C. 243 of 2001 was withdrawn by the complainant. DW1 admits that Ext.D5 relates to a cheque of Federal Bank Ltd. The present complaint is based on a cheque for Rs.54,500/- dt. 15.1.2001 of State Bank of Travancore. Since the documents produced by the accused have no connection with Ext.P1 cheque transaction, the learned Magistrate is not justified in accepting the defence case and in acquitting the accused. 9. The complainant was examined as PW1. He deposed that the accused borrowed Rs.54,500/- from him on 10.12.2000 agreeing to repay the same within one month and when he demanded back that amount, on 15.1.2001 the accused issued Ext.P1 cheque of State Bank of Travancore for that amount. PW1 deposed that the accused executed Ext.P1 cheque in his presence. When PW1 presented the cheque for collection, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo and Ext.P3 is the intimation. PW1 sent lawyer notice to the accused intimating the dishonour of the cheque and demanding back the Crl.A. No. 1838 of 2004 6 amount. Inspite of the notice, the accused did not repay any amount. Ext.P6 is the copy of the lawyer notice and Ext.P5 is the postal acknowledgment. 10. When PW1 was cross examined, the accused had no case that when he gave Ext.P1 cheque it was a blank signed cheque. In appreciating the testimony of PW1 in the light of the defence case, I am of the view that the case of the complainant that Ext.P1 cheque was issued by the accused can be accepted as true. Since execution of Ext.P1 cheque is proved by the complainant, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. The accused has not adduced any evidence to rebut that presumption. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, he is convicted for that offence. Crl.A. No. 1838 of 2004 7 11. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.55,000/- would meet the ends of justice. 12. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 598 of 2001 on the file of the J.F.C.M. Court, Kayamkulam under Section 255(1) is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.55,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and Crl.A. No. 1838 of 2004 8 produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid period, she shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm