IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 CRL.A.No. 1234 of 2003 ------------------------ AGAINST THE JUDGEMENT CC.474/1998 of JMFC, NO.IV, KOZHIKODE. CRA.479/2001 of SESSIONS COURT, KOZHIKODE .................... APPELLANT: COMPLAINANT/1ST RESPONDENT ----------------------------------------------------------------- K.RAJAN, S/O. K.CHOYI, KURUPPANKANDY HOUSE, PUTHIYARA, CALICUT-4. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: ACCUSED/APPELLANT & STATE ----------------------------------------------------------------------- 1. M.P.SADANANDAN, VINSTON TIMES, WEST HILL, KOZHIKODE-5. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.T.B.SHAJIMON FOR R1 PUBLIC PROSECUTORSRI.JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1234 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of May, 2008. Judgment This appeal which is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act is directed against the order of acquittal passed by the Sessions Court. 2. The trial court had found respondent No.1/accused guilty and convicted and sentenced him to undergo simple imprisonment for 3 months and to pay Rs.20,000/- as compensation under Section 357(3) of the Code of Criminal Procedure. However the said order of conviction and sentence was set aside by the Sessions Court in appeal. Hence this revision petition. 3. The case of the appellant/complainant before the trial court was that the accused had borrowed Rs.20,000/- from him on January 1, 1998 and issued Ext.P1 cheque in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused.. Though a statutory demand notice was issued, it did not evoke any response. The liability was not discharged. 4. The complainant was examined before the trial court as Pw.1 and Exts.P1 to P6 were marked on his side. There was no oral or documentary evidence on the side of the accused. 5. The defence set up by the accused was that he had had no money transaction with the complainant as alleged; nor had he borrowed any money from the complainant at any point of time. According to the accused, he had borrowed a sum of Rs.20,000/- from one Mr. George and in connection with that transaction, he had handed over a blank signed cheque to Sri.George. It was Crl.A.1234/2003. 2 further contended that the entire liability was discharged before the death of Sri.George. The case advanced by the accused was that the complainant might have obtained the blank cheque somehow and misused it for launching the present prosecution. The trial court, after a careful evaluation of the oral and documentary evidence on record, did not choose to believe the defence version. The learned Magistrate held that the complainant had proved his case satisfactorily. 6. But the learned Sessions Judge took the view that the case of the complainant cannot be accepted, inasmuch as he had not stated who had made the entries in the cheque in question. It is true that Pw.1 had admitted, in the course of his cross examination, that the entries in the cheque were not in the hand of the accused. But it is pertinent to note that accused had no case that he had not put his signature in the cheque. Therefore in the absence of any contra evidence, presumption available under Section 139 of the Act was in favour of the complainant. Similarly, the presumption available under section 118 was also available to the complainant. Apart from a bald suggestion made by the accused while cross examining the complainant, there was nothing on record to substantiate his contention that Ext.P1 was the blank signed cheque which he had issued to George in connection with a money transaction. 7. I have carefully gone through the order passed by the learned Sessions Judge. In my view the learned Sessions Judge had proceeded at a wrong tangent and set aside the order of the trial court without any valid or justifiable reasons. Therefore the order of acquittal passed by the learned Sessions Judge is liable to be set aside. I do so. Crl.A.1234/2003. 3 8. There is yet another aspect of the matter. The complainant had a definite case that the accused had issued Ext.P1 cheque with an assurance that it could be encashed after 40 days. The said assertion made by the complainant was never refuted or challenged in the course of the trial. But the learned sessions Judge jumped to an unwanted conclusion that the fact that the accused had issued the cheque bearing the date of borrowal would cast a shadow on the case of the complainant. I am unable to agree. 9. Therefore the order of acquittal is set aside. The accused is found guilty under Section 138 of the Act and he is accordingly convicted. 10. At this stage learned counsel for the accused submits that some leniency may be shown in the matter of sentence, since the petitioner is prepared to pay off the liability. 11. In view of the above submission, the accused is sentenced to undergo imprisonment till the rising of the court. He shall also remit Rs.26,000/- as compensation to be paid to the complainant under section 357(3) of the Code of Criminal Procedure. The accused shall appear before the trial court on August 26, 2008 and remit the amount of compensation. On his appearance, the learned Magistrate shall ensure that respondent No.1/accused undergoes imprisonment till the rising of the court on that day. If the accused fails to appear and remit the amount of compensation, he shall suffer simple imprisonment for two months. A.K. Basheer, an. Judge.