IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 1899 of 2003(D) ------------------------------------- CC.139/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ P.J.SUNNY, S/O. JOSE, PALATHINKAN HOUSE, P.O. M.G.KAVU, THIROOR, THRISSUR. BY ADV. MR.JIJO PAUL. RESPONDENTS/ACCUSED & STATE: ---------------------------------------------------- 1. ARSANS BUILDERS (P) LTD., THEKKEMADAM, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR, RADHAKRISHNA MENON,S/O.DEVAKI, KORAPPATH, KALAPPURAKKAL, THRISSUR. 2. MRUTHULA MENON, W/O.RADHAKRISHNA MENON, DIRECTOR OF THE ABOVE FIRM. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. R1 & R2 BY ADV. MR.C.A.CHACKO. R3 BY PUBLIC PROSECUTOR MR. B. VINOD. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1899 OF 2003 = = = = = = = = = = = = = = = Dated this the 18th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Thrissur in C.C.139/01. It is the case of the complainant that accused had borrowed a sum of Rs. 3 lakhs and had issued a cheque towards the discharge of the liability which when presented for encashment returned with insufficiency of funds. Thereafter statutory notice was issued and as no reply was sent and the amount not paid prosecution had been launched. 2. The case of the defence appears to be that there was a transaction between the accused and one Jose and towards that transaction accused had given a blank cheque to the said Jose and that cheque had been utilized for the purpose of filing the complaint. The evidence in this matter consists of the oral testimonies of PW1 and documentary evidence of Exts.P1 to P6. Crl.A. 1899 OF 2003 -2- 3. The points that arise for determination in the appeal are, (1) Whether there are materials to hold the accused guilty u/s 138 of the Negotiable Instruments Act? (3) If so, what shall be the quantum of punishment? Points: 4. Heard the learned counsel for the appellant as well as respondents. The learned counsel for the appellant would contend before me that there is evidence available in the form of oral evidence of PW1 that the factum of the signature in the cheque has been admitted by the accused. It is true that mere putting up of signature may not be sufficient to hold that the execution is proved in all cases. That is why it has been held in very many cases that the Court is at liberty to analyze the materials produced from both the sides to arrive at a decision in the case. 5. PW1 had been examined. He had deposed before Court that both the accused came together and requested for Crl.A. 1899 OF 2003 -3- the amount and it was handed over and later a cheque was issued towards the discharge of the liability. He had been cross examined at length. He had stated that the amount was advanced in April, 2000 that too from his room and it was given in liquid cash. It is stated that the amount was asked in the year 2000 of April and it was given thereafter. He had denied the suggestion that he was the employee of C.V. Jose. It is also stated that he has got acquaintance with the accused for the last six years. He is a commission agent doing rice business. He had categorically denied the suggestion that the cheque issued by the accused has been misused for filing this case. This is the evidence available in this case. 6. As against this only suggestions are put to the same witnesses and that had been denied. I am conscious of the fact that u/s 315 Cr.P.C. no accused can be compelled to give evidence and the Court is also not expected to make a comment upon the non adducing of evidence by the accused u/s 215(2) Cr.P.C. But at the same time the Court is at liberty Crl.A. 1899 OF 2003 -4- to analyse the evidence of PW1 with the materials on record. A cheque which is a very precious document is in the possession of the complainant and he had deposed that the cheque had been issued by the accused towards the discharge of the liability. Both of them are business people. A notice was preceded before the prosecution was launched. Not even a reply was sent by the accused. So just because a mere suggestion is put that somebody else cheque has been made use of for the case one cannot jump to the conclusion that it is the correct thing. In these type of cases the Court has to determine the acceptability of the evidence of PW1. 7. Here the evidence of PW1 has not been shattered in cross examination. He had produced Ext.P1 cheque. He had spoken about the execution of the cheque. According to me the materials are sufficient and it is only one sided and therefore there cannot be any difficulty to hold that the complainant has succeeded in proving the execution of Ext.P1 cheque and that it was towards the discharge of the liability Crl.A. 1899 OF 2003 -5- and the accused has not yet paid the amount and therefore he has committed the guilt u/s 138 of Negotiable Instruments Act. Therefore I reverse the decision of the learned Magistrate and found the accused guilty u/s 138 of the Negotiable Instruments Act. 8. So far as the sentence is concerned if the accused are willing to pay the amount I do not want to send them to jail but they can be given some time and a punishment till the raising of the Court is sufficient. In the result the Crl.Appeal is allowed as follows. (1) The accused are found guilty u/s 138 of the Negotiable Instruments Act and is convicted thereunder. (3) They are sentenced to undergo imprisonment till the raising of the Court and to pay together a compensation of Rs.3,00,000/- u/s 357(3) Cr.P.C. In case of default they shall undergo three months simple imprisonment each. (4) The accused shall appear before the Court below on 1.12.2009 to receive the sentence and to pay the Crl.A. 1899 OF 2003 -6- compensation, failing which the Court below shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-