IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRL.A.No. 908 of 2002() ----------------------- CC.1062/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... APPELLANT(S): COMPLAINANT: -------------------------- V.D.FRANCIS, S/O. DEVASSYKUTTY, VENNATTUPARAMBIL HUSE, PARIYARAM, THRISSUR DIST. BY ADV. MR. SHEEJO CHACKO RESPONDENT(S): ACCUSED: ----------------------- 1. M.A.JACOB, PROPRIETOR, ANAND TIMBER INDUSTRIES, MELETH HOUSE, PERUVANKULANGARA, OLLUR, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.M.H.HANIL KUMAR FOR R1 PUBLIC PROSECUTOR SRI S. JAYASURYA FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 16/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- Crl. Appeal No. 908 of 2002 -------------------------------------- Dated: JULY 16, 2009 JUDGMENT In this appeal the complainant in C.C. 1062/1999 of the Judicial First Class Magistrate, Chalakudy, challenges the judgment of the trial court dated 29.6.2002 dismissing the complaint and acquitting the 1st respondent/accused of the charge under sec.138 of the Negotiable Instruments Act. Special leave to appeal was granted as per order dt. 12.8.2002 in Crl.M.C.7300 of 2002. 2. The appellant/complainant filed complaint before the trial court alleging that the 1st respondent/accused borrowed Rs.2 lakhs from him and to discharge that liability he issued the cheque, Ext.P1, dated 15.4.1999 drawn on the M.G.Road Branch of the State Bank of India, Trichur, which, when presented for collection through the bank of the appellant, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice issued by the appellant, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Crl. Appeal 908 of 2002 2 Act. 3. The trial court on receipt of the complaint recorded the sworn statement of the complainant, PW.1, and took cognizance of the case. The accused on appearance before the lower court pleaded not guilty to a charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P7 were marked on the side of the complainant before the lower court. When questioned under sec.313 Cr.P.C. by the lower court, the accused denied the transaction. The accused as DW.1 testified before the lower court that Ext.P1 cheque was issued to PW.1 while he had some transaction with PW.1 during 1993 and misusing that cheque he created Ext.P1. The lower court on an appreciation of evidence found the appellant not guilty of the offence under sec.138 of the Negotiable Instruments Act and acquitted him. The complainant has now come up in appeal. 4. Sri Sheejo Chacko, learned counsel for the appellant, argued that as the accused has admitted the issuance of the cheque in favour of the complainant, the lower court should have found him guilty of the offence punishable under sec.138 of the Negotiable Instruments Act. 5. Shri M.H.Hanil Kumar, learned counsel for the 1st Crl. Appeal 908 of 2002 3 respondent/accused, would say that as the appellant has not adduced any evidence to prove the transaction between the appellant and the accused, the lower court is justified in acquitting him. 6. The following points arise for consideration: 1. Whether the finding of the lower court that the accused is not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him can be sustained? 2. If not, what is the proper punishment to be awarded? Points 1 and 2 It is true that the evidence of PW.1 coupled with Exts.P1 to P7 proves beyond doubt that the cheque Ext.P1 when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the appellant in the bank and that in spite of the notice, the accused did not repay the amount. The lower court found Ext.P1 cheque as a very old one. According to PW.1, the cheque was issued to him on 15.4.1999. Ext.P8, copy of the ledger account of the accused shows that the cheque was issued to the accused during 1993 and that after that there was no transaction in that account. The specific case of the accused that the cheque was issued as security during 1995 to the Crl. Appeal 908 of 2002 4 complainant as he had some business transaction with the complainant and that the version of PW.1 that the accused borrowed Rs.2 lakhs during 1999 is not correct. It is difficult to accept the case of the complainant that the cheque which was issued to the accused during 1995 from the bank was issued to the appellant in 1999 after four years. Further, the cheque appears to be a very old one. All these facts show that defence case is more probable. Thus the accused has rebutted the presumption available to the complainant under secs.118 and 139 of the Negotiable Instruments Act. That being so, the lower court is justified in holding that Ext.P1 cheque was not issued by the accused as alleged by PW.1 in discharge of any liability. Therefore, the lower court is justified in finding the accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him. In the result, the appeal is dismissed confirming the judgment of the lower court acquitting the accused. P.Q. BARKATH ALI, JUDGE mt/-