IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.A.No. 1134 of 2004(C) ------------------------------------- CC.NO.1076/2001 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ K.L.FRANCIS, S/O.LONAPPAN, KUNNAKUNDATH HOUSE, POOTHOLE P.O. THRISSUR-4. BY ADVS. MR.P.VIJAYA BHANU, MR.P.M.RAFIQ. RESPONDENTS/ACCUSED AND STATE: --------------------------------------------------------- 1. MAGGY, W/O.MADATHUMPADI JOHN, ARANATTUKARA P.O. THRISSUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1134 OF 2004 ------------------------------ Dated this the 11th day of August, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the J.F.C.M-II, Thrissur in C.C.No.1076/2001. Though notice was served, the accused did not appear before this Court. 2. It is the case of the complainant that the accused had borrowed a sum of Rs.25,000/= in June 2001 and had issued a cheque towards the discharge of the liability which when presented for encashment returned with the endorsement account closed. Statutory notice was issued demanding payment of the amount for which no reply was sent. Thereafter prosecution was launched. 3. The case of the defence appears to be that she had not borrowed any amount from the complainant but while she was ailing from some kidney problem, her husband had borrowed a sum of Rs.4,000/= and at that time blank signed cheque leaves were handed over towards security : 2 : CRL.A.NO.1134/04 and though the amount was repaid, the cheque leaves were not returned and one of such cheque leaves had been utilised for filing the case. The evidence in this matter consists of oral testimony of PW1 and DW1 and Exts.P1 to P5 had been marked. 4. PW1 is the complainant. He had deposed before the court that on 2.6.2001 the accused had borrowed the amount and thereafter had issued Ext.P1 cheque. The amount was not realised and hence the action. It is submitted by him that he has got acquaintance with the accused. He emphatically denied the financial transaction between the husband of the accused and the complainant. A specific question was put to him that the cheque was given as security in 1997 and that had been used for filing of this case. He had denied the same. 5. As far as prosecution under Section 138 of the N.I. Act is concerned, the burden of proving the transaction and issuance of the cheque always rests with the complainant and presumption arises when those things are proved under Section 139 of the N.I. Act. So far as the defence is : 3 : CRL.A.NO.1134/04 concerned, if the defence is able to put up a case of preponderance of probability, then the court may lean in favour of such probability. Admittedly, the cheque leaf belongs to the accused. Ordinarily, cheque leaves are considered to be very valuable documents. Suppose a blank cheque leaf had been issued in 1997, one cannot understand why a person has to wait till 2001 to initiate some action. The factum that the complainant and the accused were living neighboruing places and the factum that she was ailing from some kidney problem and also the fact that she is not having very strong financial background would indicate that she was in need of money. In this background, we look into the evidence of PW1. He had spoken about the date on which the amount was advanced. He also speaks about the date on which the cheque was issued. It is also clear that he had sent a specific lawyer notice alleging these facts. If a person had not borrowed the amount and when one receives such a notice, an ordinarily prudent man requires at least a reply to send in such matters. I make it clear that I am not trying to pick holes in the case of the defence, but : 4 : CRL.A.NO.1134/04 considering the matter for appreciating the evidence before the court. Possession of the cheque leaves of the accused with the complainant and non reply to the notice coupled with the evidence of PW1 make it clear that his evidence is acceptable so far it relates to the advancement of the amount as well as the issuance of the cheque. When it is so, the burden shifts to the accused to rebut the presumption. No worthy evidence is adduced to rebut that presumption except mere oral assertion by her husband. 6. So, I find that the court below has erred in holding that the complainant has not succeeded in proving the transaction. I find that the evidence of PW1 is acceptable to prove the transaction and that the cheque was issued towards the discharge of the liability and therefore, all the ingredients necessary to constitute the offence under Section 138 is established. So the order of acquittal passed under Section 256(1) of the Cr.P.C is set aside and the accused is found guilty under Section 138 of the N.I.Act. 7. Now turning to the question of sentence. The accused is a lady and if she is desirous of avoiding the : 5 : CRL.A.NO.1134/04 imprisonment, I give an opportunity by imposing the minimum that is imprisonment till the rising of the court and to pay a compensation of Rs.25,000/= under Section 357(3) of the Cr.P.C with default sentence. 8. In the result, the criminal appeal is disposed of as follows: 1. The order of acquittal is set aside and the accused is found guilty under Section 138 of the N.I. Act. 2. The accused is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.25,000/= under Section 357(3) of the Cr.P.C to the complainant and in default to undergo S.I for a period of two months. The accused is directed to appear before the court below on 31.10.2009 to receive the sentence and pay the compensation, failing with the trial court shall execute the sentence. M.N. KRISHNAN, JUDGE Cl : 6 : CRL.A.NO.1134/04