IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 376 of 2003() -------------------------------- CRA.209/1997 of ADDL. SESSIONS JUDGE, FAST TRACK COURT NO-I, PALAKKAD ST.3931/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTOOR ............................................................................ APPELLANT(S): COMPLAINANT: ---------------------------------------------- PARAMESWARAN, S/O. NARAYANASWAMY, DEVANKAPURAM, CHITTUR. BY ADVS. SRI.C.JAYACHANDRAN SRI.R.PARTHASARATHY RESPONDENT(S): ACCUSED: ----------------------------------------- 1. RAJAGOPALAN, S/O.ANANTHA RAMAYYAN, ILLATHU HOUSE, THEKKETHARA, ANCHUMOORTHIMANGALAM, ALATHUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.P.R.VENKETESH FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.376 OF 2003 -------------------------- Dated this the 19th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the judgment of the Addl.Sessions Judge, Fast Tract Court No.1, Palakkad Division, in Crl.A.No.209/1997. The said appeal arose out of the conviction and sentence passed in S.T.No.3931/1996 filed u/s.138 of Negotiable Instruments Act. The brief facts necessary for the disposal of the appeal are stated as follows :- It is the case of the complainant, that the accused had borrowed a sum of Rs.30,000/- for the conduct of his daughter's marriage and had paid Rs.5,000/- and later issued a cheque for the discharge of the entire liability and when it was presented for enashment, it returned with endorsement `insufficiency of funds' and hence the action. The case of the defence as seen from the 313 question is to the effect that he had borrowed a sum of Rs.25,000/- and CRL.A.No.376 OF 2003 2 had paid Rs.5,000/- back and that he had furnished two blank cheques as security for the amount and that he had not issued Ext.P1 cheque at all. The trial court on appreciation of the evidence found the case of the complainant to be true and therefore, convicted the accused and sentenced him to undergo imprisonment for a period of 2 months and to pay a fine of Rs.5,000/- in default with a further imprisonment of one month. It was against that decision the appeal was preferred. The appellate court took stand that when the amount advanced is only Rs.30,000/- and Rs.5,000/- is admittedly received back, if a cheque of Rs.45,000/- is to be issued, then the rate of interest would come to 40 % and therefore held that it is not towards the discharge of a legally enforcible liability. The learned counsel for the respondent had sited the ruling of the Division Bench of this court reported in Joseph Sartho V. Gopinathan Nair, 2008 (4) KLT 509. It was a case were the amount outstanding on the date of the issuance of the cheque was Rs.4,61,400/-. The CRL.A.No.376 OF 2003 3 cheque was issued on 4.6.1999. On 9.6.1999, the accused therein paid a sum of Rs.2,26,400/- and the balance due to the complainant was only Rs.2,35,000/-. But without disclosing this factor at all, the cheque was presented for encashment which ultimately got dishonoured. It was held that even going by the admitted facts of the case, the amount outstanding on the date of presentation of the cheque was only Rs.2,35,000/- and therefore the presentation of the cheque for the realisation of a larger amount will amount to presenting negotiable instrument for a liability which is more than what is really due. There can not be any quarrel with the said proposition but whether the said decision can be applied to the facts of the present case is the question to be considered. Demanding exorbitant interest is there from time immemorial. When the matter comes before the civil court, the civil court by various provisions of law some times declare that the interest claim is unconscionable. But prima facie it has to be stated that when the parties enter into a CRL.A.No.376 OF 2003 4 contract with both their eyes open and knowing the consequences of what they are doing, the terms of the contract can not be altered by the court, unless there are specific circumstances to do so. In this case, no where the accused has got the case of a unconscionable interest. His case is that of issuing two blank signed cheques as security for the transaction. The court of law is ordinarily expected to answer the question of dispute that arises between the parties and not to go out of the relam of the contract suo moto and come to a conclusion which no party has. I am afraid, that the learned Sessions Judge has misdirected himself, most probably feeling of high percentage of interest but that can not be done in a case where the party desires to calculate the amount and issue the cheque towards the discharge of the liability. So the said finding of the appellate court can not be accepted. 2. Now so far as other facts are concerned, the complainant has deposed before the court that he had CRL.A.No.376 OF 2003 5 advanced a sum of Rs.30,000/- towards which, Rs.5,000/- has been paid back and that the balance amount is covered by Ext.P1 cheque. The case of the accused is that the he had issued two blank signed cheques as security, is only a contention for contention sake not substantiated by any materials. I am conscious of the facts that in criminal cases no accused can be compelled to let in evidence and that non production of evidence by an accused can not be commended upon by a court in view of the provisions of S.315 of Cr.P.C. But in S.138 of Negotiable Instruments Act cases when materials are supplied by both the sides, in order to arrive at a decision regarding the correctness of the case, the preponderance of probability of both versions can be weighed to arrive at a decision. Here, we have got only one sides evidence, that is of the prosecution and it has to be held that PW1's evidence is sufficient to prove the advancement and issuance of the cheques towards the discharge of the liability. So far as other statutory CRL.A.No.376 OF 2003 6 requirements are concerned PWs 2 and 3 had spoken about them and so all ingredients necessary to constitute S.138 of Negotiable Instruments Act has been established in this case. Therefore, I reverse the judgment of the appellate court and confirm the conviction u/s.138 of Negotiable Instruments Act passed by the trial court. Now comes the question of sentence. The trial court has sentenced the accused to undergo imprisonment for a period of 2 months and to pay a fine of Rs.5,000/- in default of which, a further imprisonment for a period of one month. If the accused in the case really wants to wipe off the liability, I do not want to send him into prison and therefore, especially in the light of the amended provisions of Negotiable Instruments Act, which enables any competent court of jurisdiction to levy a fine of double the amount of the cheque, I feel justice can be met by directing to pay a fine instead of imprisonment. Therefore, the criminal appeal is disposed of as follows :- 1. The order of judgment of acquittal passed by the CRL.A.No.376 OF 2003 7 learned Sessions Judge is set aside. 2. The accused is found guilty u/s.138 of Negotiable Instruments Act and is sentenced to pay a fine of Rs.45,000/- failing which he has to undergo simple imprisonment for a period of 2 months. When such amount is paid or realised, let that amount be disbursed to the complainant on proper application. The accused shall pay the fine on or before 10.9.2009, failing which the trial court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.