IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.A.No. 1114 of 2003() ---------------------------------- CC.216/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYOLI .................... APPELLANT/RESPONDENT/COMPLAINANT ------------------------------------------------------------- M.P. ABDUL RAZAK, S/O. ASSAN KUTTY, MENAL PEEDIKAYIL VEEDU, IRINGATH AMSOM, KULUPPA DESOM, KOYILANDY. BY ADV. SMT.K.V.RESHMI RESPONDENTS/APPELLANT/ACCUSED/STATE ------------------------------------------------------------------- 1. PARASSERI MUTHUKRISHNAN, S/O. NARAYANAN, KARAYADU AMSOM, THIRUVANGOOR DESOM, KOYILANDY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R1 BY ADV. MR.P.K.SURESH KUMAR, MR.K.P.SUDHEER . THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1114 OF 2003 ------------------------------ Dated this the 10th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal in C.C.no.216/2002 of the JFCM, Payyoli. It is the case of the complainant that the accused had borrowed a sum of Rs.75,000/= and towards the discharge of the same, had issued a cheque dated 10.8.2002, which when presented for encashment, returned with the endorsement of insufficiency of funds. Thereafter a statutory notice was issued and action was initiated. The case of the defence appears to be that the accused and the complainant were partners of a hotel called New Palace and at that time he had given a blank signed stamp paper as well as a blank signed cheque. When there was some dispute with respect to the accounts, the complainant had made use of those blank signed instruments for filing the case and therefore the action will not lie. 2. PW1 and Dw1 were examined and Exts.P1 to P7 were marked. The points that arise for determination are (1) whether the accused had committed the offence under 2 CRL.A.NO.1114/03 Section 138 (2) whether the judgment of the court below calls for interference and (3) In case of guilt, what is the punishment. 3. Points 1 and 2: It is the case of the complainant that the accused had borrowed a sum of Rs.75,000/= and to evidence the same, had executed an agreement - Ext.P7 in the presence of the witnesses. A reading of Ext.P7 would reveal that the accused had borrowed the amount on 18.10.2001 and had agreed to pay the amount on 10.8.2002. It is on 10.8.2002 that the cheque was issued towards the discharge of the liability. PW1 had deposed about the execution of the agreement as well as execution of the cheque and the court below also did not appreciate the defence set up by the accused in that aspect. According to the accused, he was a partner along with the complainant in hotel New Palace and at that time, he had given a blank signed cheque as well as a blank signed stamp paper. There was some dispute with respect to the accounting and at that stage, those documents had been fabricated for the purpose of filing the case. It would have been very easy for the accused to prove especially since he had 3 CRL.A.NO.1114/03 attempted to establish his case by examining DW1 about the partnership hotel. I am conscious that no accused is bound to adduce evidence in a criminal case . But when materials are attempted to be supplied, it is equally well settled principle that the court can look into it to find out the preponderance of probabilities to accept the version of the witnesses. Therefore, when the signatures in Exts.P7 and P1 are admitted and the execution is proved by the evidence of PW1 then naturally the presumption under Sections 118 and 139 of the N.I.Act will apply and the burden to rebut the same is on the accused. The rebuttal evidence adduced in this case is highly artificial which cannot be relied on at all to decide the case. 4. Strangely, the court below had deviated from all these points and had arrived at a decision that Ext.P1 cheque is issued as a collateral security and therefore it does not indicate that it is towards the discharge of the liability and so the case cannot be sustained. It is by virtue of Ext.P7, admission by the accused regarding the amount due to the complainant is found. It is stated in Ext.P7 that one day prior to the execution of the document, that is on 18.10.2001 the 4 CRL.A.NO.1114/03 accused had borrowed a sum of Rs.75,000/= and had categorically stated that he would discharge the amount by 10.8.2002. Ext.P1 is issued on 10.8.2002 for Rs.75,000/=. How can one give it as a collateral security. It can be only as a cheque issued towards the discharge of the liability due under Ext.P7 agreement. So, the attempt of the learned Magistrate to categorise Ext.P1 as a collateral security is absolutely devoid of any merit and it has to be simply brushed aside. When it is so, as discussed by me earlier, execution of Ext.P1 is proved and it is towards the discharge of the liability under Ext.P7. Thereafter a valid legal notice is issued and a reply is sent raising so many contentions. The defence has not succeeded in rebutting the presumption. It has to be held that the prosecution has succeeded in proving that the accused has committed the offence under Section 138 of the N.I.Act. Therefore, I set aside the judgment passed by the learned Magistrate and find that the accused is guilty under Section 138 of the N.I.Act. 5. Now on the sentence. The amount due to the complainant is Rs.75,000/=. I do not want to send the accused to jail if he is really interested in making the 5 CRL.A.NO.1114/03 payment. By virtue of the amended provisions of the N.I.Act, the Magistrate is competent to impose a fine of double the cheque amount. So, I feel that this is a fit case where the accused can be sentenced to pay the fine of Rs.75,000/= and in default, to undergo imprisonment. 6. Therefore, the Criminal Appeal is disposed of as follows: 1. The order of acquittal passed by the learned Magistrate is set aside. 2. The accused is found guilty under Section 138 of the N.I.Act and is convicted thereunder. He is sentenced to pay the fine of Rs.75,000/= which on recovery shall be paid to the complainant. In case of default, the accused has to undergo S.I for a period of 2 months. 3. The accused shall pay the amount on or before 15.9.2009 failing which, the court below shall execute the sentence. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1114/03 7 CRL.A.NO.1114/03