IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 CRL.A.No. 866 of 2003() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.32/2003 Dated 28/05/2003 CC.240/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANTCOMPLAINANT: --------------------------------------- M/S. AMMINI ELECTRONICS, TRIPUNITHURA, REP. BY ITS MANAGER PRAMOD PETER. BY ADV. SRI.T.B.THANKAPPAN SMT.K.DEEPA RESPONDENTS/ACCUSED: ------------------------------------ 1. G. BALAKRISHNA PILLAI, TRANSPORT INSPECTOR, DISTRICT TRANSPORT OFFICE, K.S.R.T.C., ERNAKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON 05/01/2011 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 866 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2011 JUDGMENT This appeal is filed by the complainant in C.C..No. 240 of 1999 on the file of the Addl. Chief Judicial Magistrate Court, Ernakulam. 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 appellant/complainant is that the accused issued cheque dt. 17.10.1998 for Rs.14,490/- drawn on the State Bank of India, Ernakualam South to the complainant towards discharge of a legal liability that he owed to the complainant. The appellant presented that cheque for collection, but the same was dishonoured due to insufficiency of funds in the account of the accused, which fact was informed to the complainant by his banker on 28.10.1998. On 7.11.1998 the Crl.A. No. 866 of 2003 2 appellant sent a registered lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount, which was received by the accused on 10.11.1998. Even after receipt of the notice, the accused did not repay any amount. Hence the complaint was filed on 9.12.1998. 3. In the Addl. Chief Judicial Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the defence side Ext.D1 was marked. The learned Addl. Chief Judicial Magistrate, on considering the evidence, found that the complainant failed to prove its case and therefore the accused was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant raised the following contentions at the time of argument. The learned counsel submitted that Ext.D1 was not properly proved. There is nothing on record to Crl.A. No. 866 of 2003 3 conclude that the accused had paid Rs.5,000/- out of the total amount covered by the cheque, which is the subject matter of the complaint. There is no dispute that the cheque was issued by the accused. Based on the presumption under Section 139 of the N.I. Act, the court below ought to have found that the cheque was issued in discharge of a legally enforceable debt and the accused should have been found guilty of the offence under Section 138 of the Act. 6. The learned counsel for the appellant further submitted that the court below ought to have found that when the signature in the cheque was admitted by the drawer, even if the other entries are disputed, the presumption under Section 139 of the Act would arise that the cheque was issued in discharge of a legally enforceable debt. Learned counsel further submitted that even if amount alleged to have been paid by the accused, out of the total amount covered by the cheque, the court below should have found that a cause of action is available to the complainant under Section 138 of the Act. Crl.A. No. 866 of 2003 4 7. In the decision reported in Kochayippa v. Suprasidhan (2002 (2) KLT 652) it has been categorically stated that : “Even if the cheque is for a lesser amount than the actual amount of consideration, still a cause of action would be available to the payee under Section 138 of the Negotiable Instruments Act. If that is so the question of a cheque for a larger amount than what is actually received by the accused also would make no difference provided the entire amount so mentioned is necessary to discharge the debt or legal liability. The accused cannot hence get an acquittal on the ground that there is difference between the actual amount received from the creditor and the amount shown in the cheque.” 8. When the accused was questioned under Section 313 Cr.P.C. he denied the entire transaction. 9. The Manager of the complainant firm was examined as PW1. Ext.P1 is the authorisation letter issued by the complainant in favour of Crl.A. No. 866 of 2003 5 PW1 to conduct the case. According to PW1, the accused purchased a fridge from the complainant firm for a sum of Rs.14,490/- Towards the value of the said fridge, he issued Ext.P2 cheque. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P3 is the dishonour memo. PW1 sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. Ext.P4 is the copy of the lawyer notice. The accused accepted the notice. Ext.P5 is the postal acknowledgment signed by the accused. The memo received from the drawee bank is Ext.P6. PW1 deposed that the cheque was issued to discharge an existing liability and inspite of receipt of the lawyer notice, the accused did not repay any amount. 10. According to the defence case, when the accused purchased a fridge from the complainant firm, he paid Rs.5,000/- in cash and for the balance amount a blank cheque was entrusted with the complainant. PW1 admitted that Ext.D1 is the bill issued from the complainant firm Crl.A. No. 866 of 2003 6 showing that the accused purchased a fridge from the complainant worth Rs.14,490/- and on the same day he paid Rs.5,000/- as advance. But the accused has not gone to the witness box to depose that when Ext.P2 cheque was issued it was a blank signed cheque. Therefore, the case of the complainant that Ext.P2 cheque was issued by the accused when he purchased a fridge from the complainant has to be accepted as true. In view of the decision in Kochayippa (supra), even if Ext.P2 cheque was issued when the actual amount due was a lesser amount, the accused cannot be acquitted on that ground. 11. Since execution of the cheque is proved, the presumption under Sections 118 and 139 of the N.I. Act would apply and it is for the accused to rebut that presumption. But the evidence adduced from the side of the accused is not sufficient to rebut that presumption. Since the complainant has proved all the essential elements 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 Act he is convicted for that offence. Crl.A. No. 866 of 2003 7 12. 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.15,000/- would meet the ends of justice. 13. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 240 of 1999 on the file of the Addl. Chief Judicial Magistrate Court, Ernakulam 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.15,000/- 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 one month from today and produce a memo to Crl.A. No. 866 of 2003 8 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, he shall suffer S.I. for a period of one month by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm