IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 CRL.A.No. 890 of 2001 CC.294/1999 of JUDL.MAGISTRATE OF FIRST CLASS, HARIPAD .................... APPELLANT/COMPLAINANT: G.SUNIL, GOPALA SADANAM VEETTIL NADUVATHUM MURIYIL THELAMPARAMBU, HARIPAD VILLAGE BY ADV. SRI.K.HARILAL RESPONDENTS/ACCUSED & STATE OF KERALA: 1. CHELLAPPAN VADAKKE KURUNTHODATHU VEETTIL EVOORTHEKKUM MURIYPATHYOOR VILLAGE 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.B.RENJITHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.2.08 , THE COURT ON 20/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.890 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February 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 court below. The trial court held that the complainant had failed to prove that the accused had borrowed the amount covered under Ext.P1 cheque, and that the case projected by the respondent No.1/accused was more probable and true. Accordingly, the accused was acquitted. Hence this appeal. 2. The case of the complainant before the court below was that the accused had borrowed a sum of Rs.30,000/- for his personal purpose agreeing to repay it soon. When the complainant requested for repayment of the money, the accused issued Ext.P1 cheque dated May 27, 1999 for a sum of Rs.30,000/-. 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 notice was issued demanding Crl.A.No.890 OF 2001 :: 2 :: payment, the accused not only failed to discharge the debt, but he sent a reply containing false contentions. 3. The complainant was examined as PW1 and the Managers of the two Banks were examined as PW2 and 3. Exts.P1 to P10 were marked on his side. DW1 to 3 were examined on the side of the accused and Exts.D1 to D10 were also marked on his side. 4. As mentioned earlier, the court below accepted the defence version and held that the complainant had not proved that Ext.P1 cheque was issued by the accused in discharge of the alleged debt of Rs.30,000/-. The defence set up by the accused, while he was examined before the court as DW3, was that Ext.P1 cheque was issued by him as security at the time when the earlier case (C.C.78/97) pending between him and the complainant was settled. He further deposed before the court that in terms of the said settlement, he had paid off the entire liability of Rs.22,120 to the complainant. According to him, four instalments of Rs.2,000/- each were transferred from his account to the account of the complainant. The balance amount of Rs.17,000/- was paid to the complainant on February 15, 1999 directly at his shop. DW2 Crl.A.No.890 OF 2001 :: 3 :: stated that he was present when the accused handed over Rs.17,000/- to the complainant. It was further deposed by the accused that the complainant had demanded Rs.5,000/- more at that time. The complainant insisted that the blank cheque issued by him as security would be returned only if the said amount of Rs.5,000/- was paid. The specific case of the accused was that he was not prepared to pay the sum of Rs.5,000/- as demanded by the complainant. The present prosecution was launched by the complainant in retaliation misusing the said cheque. 5. In this context, it is pertinent to refer to the reply notice sent by the accused in response to the statutory demand notice issued by the complainant when Ext.P1 cheque was dishonoured. The case of the accused in the reply notice (Ext.P10) was that he had purchased a T.V. from the shop of the complainant in September 1995 for Rs.22,120. On the date of purchase, he had paid Rs.14,120/-. The balance amount of Rs.8,000/- could not be paid to the complainant as agreed. Therefore as requested by the complainant, the accused had issued a cheque dated January 1, 1998. It is specifically averred in the reply notice that the cheque Crl.A.No.890 OF 2001 :: 4 :: referred to in the demand notice was the above cheque issued by him. But according to the accused, he had paid off the sum of Rs.8,000 subsequently through S.B.T. Haripad branch. (four instalments of Rs.2,000/- each paid on February 9, 1998; March 10, 1998; May 11, 1998 and June 12, 1998). Thus, the specific case of the accused in the reply notice was that the entire transaction between him and the complainant had been closed and the demand made by the complainant in the notice was totally untenable. Curiously, the accused did not have a case in his Section 313 statement that the complainant had demanded Rs.5,000/- more when he had personally handed over Rs.17,000/- in discharge of the entire liability in connection with the T.V. purchase. As noticed already, the case projected by the accused before the court was totally inconsistent with what he had contended in the reply notice. In Section 313 statement, the accused further stated that he had forgotten to ask for the cheque. At the time of making the payment of Rs.17,000/-, the complainant had told him that it was at his home and that he would hand it over to him later. Crl.A.No.890 OF 2001 :: 5 :: 6. Having perused the materials available on record and having considered the defence case set up by the accused, I have no hesitation to hold that the court below was not justified in taking the view that the defence version was more probable and true. As rightly pointed out by the learned counsel for the complainant, Section 118 presumption was available in favour of the complainant. The specific case of the complainant was that he had lent a sum of Rs.30,000/- to the accused who was an old acquaintance of his. Ext.P1 cheque was issued in discharge of the said debt. But the defence case set up by the accused was totally inconsistent and contradictory to the stand taken by him in his reply notice. Presumption under Section 139 of the Act had also not been discharged. 7. Having regard to the entire facts and circumstances of the case, I am satisfied that the complainant had established his case with cogent and satisfactory evidence. Therefore, the order of acquittal is liable to be set aside. 8. At this stage, learned counsel for the accused submits that the accused is prepared to pay off the liability, if some Crl.A.No.890 OF 2001 :: 6 :: reasonable time is granted to him. He prays that a lenient view may be taken as regards the sentence to be imposed on the accused. It is submitted on behalf of the complainant that he is interested only to get his money back. It is further submitted by the learned counsel that the complainant is not pressing for any compensation also. Therefore, respondent No.1/accused is found guilty of the offence under Section 138 of the Act and he is accordingly convicted and sentenced to undergo imprisonment for one day and to pay a fine of Rs.30,000/- which on realisation shall be paid to the complainant. Respondent No.1 shall appear before the court below on March 31, 2008 and deposit the cheque amount of Rs.30,000. On his appearance, it shall be ensured by the learned Magistrate that the accused undergoes imprisonment till the rising of the court. If the accused fails to appear and remit the amount of Rs.30,000/- as directed above, he shall suffer simple imprisonment for three months. (A.K.BASHEER, JUDGE) jes Crl.A.No.890 OF 2001 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.890 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 20th Feb. 2008