IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 CRL.A.No. 2055 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.572/2003 Dated 27/11/2003 CRA.376/1997 of ADDL. SESSIONS COURT (ADHOC), THALASSERY STC 210 OF 1995 ON THE FILE OF JFMC, PAYYANNUR .................... APPELLANT/RESPONDENT/COMPLAINANT: -------------------------------------------------------------- M.V. KANNAN, S/O. LATE M.V. KUNHAMBU, NISHANTH NILAYAM, PEKKADAM P.O. TRIKARIPUR, KASARGOD DIST. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENTS/APPELLANT/ACCUSED: ------------------------------------------------------- 1. N. RAGHAVAN, S/O. LATE KANNAN PANIKKAR NEELAMBATH HOUSE, PEKKADAM P.O. TRIKARIPUR, KASARGOD DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. P.R. JAYAKRISHNAN ADV. SRI.R .SURENDRAN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON 24/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 2055 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T.C. No. 210 of 1995 on the file of Judicial First Class Magistrate Court, Payyannur. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence punishable under Section 138 of N.I. Act. 2. The case of the complainant is briefly as follows. The accused borrowed Rs.83,000/- from the complainant in February, 1994 for the purpose of his daughter's marriage. He promised to repay the amount in March, 1995, when he was about to retire. For the said amount the accused issued two cheques in favour of the complainant for Rs.69,000/- and Rs.14,000/- The cheques were not dated at that time. The accused permitted the complainant to enter the date and present the cheques for collection in March, 1995. Crl.A. No. 2055 of 2003 2 3. On 1.8.1994, the complainant received an information that the accused was arranging for a voluntary retirement and thereby to escape from the liability. Hence the complainant approached the accused. But the accused denied the above fact and he agreed to repay the amount on 10.11.1994. At that time, the accused himself has entered the dates in the cheques. Thereafter, the complainant issued a notice to the accused informing that he would be going to present the cheques on 10.11.1994. The accused issued a reply notice raising baseless contentions. The cheques were presented for collection. But they were returned for want of sufficient funds in the account of the accused. Thereafter the complainant issued a notice to the accused informing the fact and demanding the cheque amount. But there was no reply and the amount was not paid. 4. In the Magistrate Court, on the side of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P12 were marked. On the side of the accused, Exts.D1 to D4 were marked. The learned Magistrate, on considering the evidence, found that the accused Crl.A. No. 2055 of 2003 3 has committed the offence punishable under Section 138 of the N.I. Act and he was convicted and sentenced to undergo S.I. for a period of three months. Against that conviction and sentence the accused filed Crl.A.No. 376 1997 before the Additional Sessions Court, (Adhoc-I), Thalasserry, which was allowed and the accused was found not guilty and he was acquitted. Against that judgment of acquittal the complainant filed this appeal. 5. Heard learned counsel for the appellant and the learned counsel for the first respondent. 6. Learned counsel for the appellant submitted that the Appellate Court went wrong in not properly appreciating the evidence on record before reversing the judgment of the trial court. The learned counsel for the appellant submitted that the finding of the Appellate Court that the complainant did not seek expert opinion regarding the putting of dates in the cheques is unsustainable and the evidence adduced by the complainant is that the dates in the cheques were put by the accused himself and if the dates in the cheques were not put by the accused he Crl.A. No. 2055 of 2003 4 would have denied that fact in Ext.P2 or by way of reply to Ext.P7. 7. The learned counsel further submitted that the complainant had also filed a civil suit for recovery of the cheque amount as O.S.No. 133 of 1995 before the Sub Court, Payyannur, which was decreed and against which the defendant/accused filed an appeal before this Court as A.S.No. 64 of 2001. The said appeal was disposed of as per judgment dt. 14.7.2010 confirming the judgment and decree of the trial court with the only modification that the plaintiff/complainant will be entitled to interest at the rate of 6% from the date of the decree of the trial court and that till the date of decree interest granted at the rate of 12% will stand confirmed. The learned counsel for the first respondent/accused submitted that the accused/defendant had deposited the entire decree amount before the execution Court on 3.11.2010. 8. When the accused was questioned under Section 313 Cr.P.C., the accused admitted that he gave two cheques to the complainant for Rs.69,000/- and Rs.14,000/- without putting dates, on 16.4.1994. Crl.A. No. 2055 of 2003 5 The accused also admitted that those two cheques were dishonoured due to insufficiency of funds in his account. The accused further stated that the cheques were given to the complainant on faith and as security and that no amount was borrowed on the basis of the cheques issued. He referred to the letter produced on his side and said that the complainant had assured to give an agreement on stamp paper. But he did not give the agreement. The accused further stated that as per the undertaking given by the complainant, the accused had no liability before 15th of March. He stated that he had no liability towards the complainant, who did not respond to the lawyer notice sent by him. 9. The complainant was examined as PW1. He deposed that the accused borrowed Rs.83,000/- from him in February, 1994 for the marriage of his daughter. The accused promised to repay the amount in March, 1995 on his retirement. The accused met PW1 on 16.4.1994 and gave Exts.P3 and P4 cheques for Rs.69,000/- and Rs.14,000/ respectively. The cheques were not dated at that time. PW1 got information that the accused was trying to leave the area after Crl.A. No. 2055 of 2003 6 disposing his property. He approached the accused and demanded the amounts given in advance. The accused took back the cheques and dated them as 10.11.1994 and gave back to the complainant. 10. As per Ext.P1, the complainant informed the accused that the cheques would be presented for encashment. On receipt of Ext.P1 the accused sent Ext.P2 reply on 18.11.1994. On the assurance of the accused that sufficient amounts will be deposited in the bank, PW1 presented the cheques for collection. But the cheques were returned for the reason of insufficiency of amount in the account of the accused. Ext.P6 is the letter issued by the bank to the complainant. Ext.P7 is the copy of the demand notice issued on 29.11.1994, Ext.P8 is the postal receipt obtained and Ext.P9 is the acknowledgment. Ext.P10 is the letter sent by the accused informing that the gas connection had been materialised with the assistance of PW1. Ext.P11 is a letter sent by the accused on 10.8.1993 and Ext.P12 is the marriage invitation card of the daughter of the accused. PW1 stated that the accused did not pay the amount to him. Crl.A. No. 2055 of 2003 7 11. In the written statement filed by the defendant/accused in O.S.No. 133 of 1995, the accused has no case that the dates in the cheques were not put at his instance. In view of this aspect, the finding of the appellate court that the complainant failed to seek expert opinion is not proper. Another reason stated by the appellate court is that there was no necessity for Ext.P1 notice if the cheques been dated. There is no abnormality in sending Ext.P1 notice because contrary to the promise made by the accused when he borrowed the amount, he attempted to take voluntary retirement from service and it was subsequent to that the cheques were dated at the instance of the accused. Another reason stated by the appellate court is that repayment of the amount borrowed will fall due only in March, 1995 and that the presentation of the cheques was on a premature date. 12. It is not disputed by the accused that the dates were put in the cheques at his instance. The transaction in question was a monetary help extended by the complainant for the marriage of the daughter of the accused and that help was not given on the basis of any Crl.A. No. 2055 of 2003 8 contract and as such there is nothing wrong in promising to pay back the amount at an earlier date. Another reason prompted the appellate court to reverse the judgment is that the complainant did not adduce any evidence to show from where he obtained the information that the accused is trying to take voluntary retirement. That is not a sufficient ground to reverse the judgment of conviction. 13. Exts.P3 and P4 cheques were dated 10.11.1994. Exts.P5 and P6 documents issued from the bank would show that the aforesaid cheques were dishonoured on 14.11.1994 and returned on 17.11.1994. Ext.P7 is the copy of the lawyer notice dt. 29.11.1994 issued to the accused demanding the amount. Ext.P8 would show the issue of notice by registered post. Ext.P9 acknowledgment card shows that the accused had received the notice on 1.12.1994. The evidence of PW1 shows that within the stipulated period or thereafter the accused had no case that he had repaid the amount. The complaint was filed before Court on 20.12.1994. Crl.A. No. 2055 of 2003 9 14. The complainant has proved all the necessary ingredients of the offence punishable under Section 138 of the N.I. Act. Therefore, the learned Magistrate is perfectly justified in convicting the accused under Section 138 of the N.I. Act and the Additional Sessions Judge is not justified in acquitting the accused. 15. It is an admitted fact that the accused had deposited the entire amount covered by the cheques in the execution court. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.5,000/- would meet the ends of justice. 16. Accordingly this appeal is allowed and the judgment of acquittal of the accused in Crl.A.No. 376 of 1997 on the file of the Additional Sessions Court, Thalasserry is set aside and the accused in S.T.C.No. 210 of 1995 on the file of the Judicial First Class Magistrate Court, Payyannur is convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.5,000/- The Crl.A. No. 2055 of 2003 10 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 that effect before the court below in case of direct payment. If the accused failed 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