IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 CRL.A.No. 81 of 2008 ---------------------------------- CC.93/2006 of JFCM-IV, PUNALUR .................... APPELLANT/PETITIONER/COMPLAINANT: V.KUNJUMON, S/O.VASUDEVAN, "KAREEPRA VEEDU", BHARATHEEPURAM P.O. BHARATHEEPURAM, YEROOR VILLAGE. BY ADV. SRI.S.PRAKASH RESPONDENTS/ACCUSED AND STATE: 1. S.SURESH BABU, 'SOMALAYAM', YEROOR P.O. YEROOR. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 81 of 2008 --------------------------- JUDGMENT This is appeal filed with leave by the complainant in C.C.No.93/06 on the file of the Judicial First Class Magistrate's Court, Punalur assailing the acquittal of the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act, vide Section 255(1) Cr.P.C. 2. The appellant filed complaint in the court below alleging that the first respondent is one known to him; that for the purpose of his personal needs, the first respondent received from him an amount of Rs.1,50,000/- on 5.10.2005, undertaking that it would be returned in one month; that on demand made for return of the said amount, the first respondent came over to the house of the appellant on 6.11.2005 and issued Exhibit P1 cheque for an amount of Rs.1,50,000/- drawn on his account at Eloor Branch of the South Indian Bank Limited CRA 81/08 2 with date 7.11.2005; that he forwarded the said cheque for collection through his bankers, namely, the Anchal Branch of the Kollam District Co- operative Bank Limited; that thereupon it was dishonoured by the drawee bank for reason of insufficiency of funds in his account to honour the said cheque vide Exhibit P4 dishonour memorandum dated 22.11.2005; that Exhibit P1 cheque along with Exhibit P4 memorandum was forwarded to him by his bankers under Exhibit P2 debit advice; that thereupon the original of Exhibit P5 notice was issued to the first respondent by registered post acknowledgment due intimating him of the dishonour of the cheque and demanding payment of the amount covered by the said cheque and that is returned unclaimed by the first respondent and the returned notice is Exhibit P6 and that the first respondent, who has avoided claiming the said notice, has not paid up the amounts covered by the cheque either withing the statutory period or ever thereafter and CRA 81/08 3 thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate, who registered the complaint on the file of his court, recording the sworn statement of the complainant and taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, has conducted a trial of the case, as the first respondent pleaded not guilty when particulars of the offence were read over and explained to him on his appearance in the court pursuant to issuance of summons. 4. On the side of the appellant/complainant, he has given evidence as PW1 and his wife tendered evidence as PW2 and got marked in evidence Exhibits P1 to P11(a). On the appellant closing his evidence, the first respondent was questioned by the learned Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and CRA 81/08 4 maintained that he is innocent. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid, found that there is no evidence to substantiate the case of the appellant that an amount of Rs.1,50,000/- was advanced as alleged; that there is material alteration in Exhibit P1 cheque and consequently, held that the first respondent has not committed an offence punishable under Section 138 of the Negotiable Instruments Act and acquitted him of the said offence vide Section 255(1) Cr.P.C. Hence this appeal by the aggrieved appellant. 6. It is contended before me by the learned counsel for the appellant that the appellant is a person, who was employed in Gulf; that the amount was being advanced on the request of the first respondent in faith; that the appellant was having sufficient funds with him, as he was in affluent circumstances and that the observation of the CRA 81/08 5 learned Magistrate that Exhibit P1 cheque is manipulated is without any basis whatsoever and the court below should have entered into a conviction of the first respondent for offence under Section 138 of the Negotiable Instruments Act. 7. On a close perusal of Exhibit P1 cheque, I am convinced that the suspicion that it was manipulated or that material alteration is effected therein, as observed by the learned Magistrate, is certainly not correct and there is no reason at all to think from the writings in Exhibit P1 that any material alteration has been effected therein. 8. PW1 is the appellant himself and he has proved Exhibits P1 to P7. He has deposed that the first respondent contacted him over phone on 4.10.2005 and asked for a loan of Rs.1,50,000/- and the amount was advanced to him on 5.10.2005 and that Exhibit P1 cheque was issued to him on 7.11.2005 for an amount of Rs.1,50,000/- in discharge of the said debt promising that it can be CRA 81/08 6 got cashed on presentation. He has denied the suggestion in cross-examination that Exhibit P1 cheque had not been signed and delivered to him by the first respondent. The first respondent has no explanation at all as to how Ext.P1 cheque drawn on his account is with the appellant. Apart from the suggestion in cross-examination that the appellant was not having the ability to advance Rs.1,50,000/- as on the date on which the amount is stated to have been advanced which is emphatically denied by PW1, nothing else has been brought out in the testimony of PW1 to advance the defence contention or to have the case of the appellant improbabilised. 9. PW2 is the wife of PW1 and she has stated that she has witnessed advancing of the amount by her husband to the first respondent. She has also testified that the first respondent was coming over to their house on 6.11.2005 and giving Exhibit P1 cheque signed in their presence. She also deposed CRA 81/08 7 that the reason for dishonouring the cheque was insufficiency of funds in the account of the first respondent to honour the same. She has got marked Exhibit P11 pass book issued by the Anchal Branch of the Kollam District Co-operative Bank Limited in favour of her husband in Account No.98, which showed that on 14.2.2005 an amount of Rs.1,40,000/- was withdrawn from the said account. Obviously, the said withdrawal cannot be for payment to the first respondent, as the first respondent asked for loan, even according to the appellant, only on 4.10.2005 and not prior thereto. She has also deposed that towards her share she obtained 1½ acres of rubber estate; that it would fetch Rs.1,000/- per day; that she is a Livestock Inspector in the Veterinary Department and that her husband has also got income from Gulf. She further stated that the income from the rubber estate is being dealt with by her husband. In cross- examination, she has deposed that her marriage took CRA 81/08 8 place in 2002 and it is thereafter that she got the rubber estate having 1½ acres towards her share; that she got saving bank account in the state Bank; that in her name there is Rs.10,000/- in deposit; that her husband opened an account in the 2005 and that is an NRI account exclusively in his name; that she has got the power of attorney in her favour and that in the evening on 5.10.2005, the first respondent was coming over to her house at 6.30 p.m. and receiving Rs.1,50,000/- as advance. 10. It is pointed out by the counsel for the appellant that PW2/the wife and the power of attorney holder of the appellant has given evidence that the amount of Rs.1,40,000/- was being withdrawn from the account of the appellant as evidenced by Ext.P11(a) entry in Ext.P11 pass book on 14/02/05 for the purpose of advancing the said amount to the elder brother of the appellant and that the appellant's elder brother returned that amount on 02/10/05 and it was that amount along CRA 81/08 9 with another Rs.10,000/- which she was having with her that an amount of Rs.1,50,000/- was advanced to the first respondent and that there is no cross examination on behalf of the first respondent on the aforesaid statement of PW2. PW1 had not been asked in cross examination as regards the source of amount to advance Rs.1,50,000/-. It is true that for lack of any effective cross examination as regards means of the appellant and failure to cross examine PW2 the wife of the appellant as regards the evidence tendered by her as regards the source of amount for advancing Rs.1,50,000/- to the first respondent on 05/10/05, this is not a case wherein finding could have been entered into to the effect that the appellant was not having any source for advancing the amount to the first respondent as alleged. Further, though a suggestive question is seen to have been put to PW1 in cross examination that the first respondent was not in station at the relevant period the first respondent has not CRA 81/08 10 adduced any evidence in that behalf. In the circumstances, especially when the first respondent had nothing to say as to how Ext.P1 cheque drawn on an account maintained by him with the drawee bank happened to be with the first respondent it ought to have been found that Ext.P1 cheque is one issued by the first respondent to the appellant in discharge of debt due to him. The acquittal of the first respondent, in the circumstances, is improper and the acquittal deserves to be set aside and the first respondent convicted for offence under Section 138 of the N.I. Act as it is in evidence that Ext.P1 cheque was being dishonoured for want of sufficient funds in the account of the first respondent and that the appellant has complied with all the statutory requirements which are prerequisites for the maintainability of a complaint under Section 138 of the N.I. Act. Consequently, therefore, the judgment of the court below acquitting the first respondent of offence CRA 81/08 11 under Section 138 of the N.I. Act, finding him not guilty of offence punishable under Section 138 of the N.I. Act deserves to be set aside and the first respondent convicted for the said offence and I do so. 11. In the result, in reversal of the acquittal of the first respondent by the court below of offence under Section 138 of the N.I. Act, I find the first respondent guilty of offence punishable under Section 138 of the N.I. Act; convict him thereunder and sentence him to undergo imprisonment for a term of one year. He is also directed to pay an amount of Rs.1,50,000/- to the appellant by way of compensation under Section 357(3) of the Cr.P.C. The appeal is thus allowed. 9th April, 2008 (K.P.Balachandran, Judge) tkv