IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1548 of 2003()
1. BABU @ KRISHNAKUMAR,
... Petitioner
Vs
1. M.VELAYUDHAN, S/O.AARU,
... Respondent
For Petitioner :SRI.C.K.ABDUL RAHIM
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/07/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 1548 OF 2003
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Dated this the 29th day of July, 2009.
J U D G M E N T
This appeal is preferred against the order of acquittal
passed by the Judicial First Class Magistrate-I, Palakkad in
C.C.56/02. The Court below acquitted the accused in an
offence u/s 138 of the Negotiable Instruments Act. It is the
case of the complainant that the accused had borrowed a sum
of Rs.40,000/- on 27.9.99 and towards the discharge of the
liability had issued a cheque which when presented for
encashment was dishonoured with a memo stating exceeds
arrangement. Though a notice was issued the accused did not
pay back the amount and so the prosecution.
2. The evidence in this matter consisted of the oral
testimonies of PWs.1 to 3 and Ext.P1 to P11(d).
3. The points that arise for determination in the
appeal are,
(1) Whether there are materials to hold the accused
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guilty u/s 138 of the Negotiable Instruments Act?
(2) Whether the Court below was justified in acquitting
the accused?
(3) Is there anything to interfere with the decision of
the Court below?
Points:
4. All these points are considered together for the
sake of convenience. It is deposed by the complainant as PW1
that he had advanced a sum of Rs.40,000/- to the accused
who was running a ration shop and when the amount was
demanded back on 28.10.99 a cheque was issued towards the
discharge of the liability. Ext.P1 is the cheque. He had also
spoken about the non payment and issuance of notice etc. In
the cross examination the suggestion is to the effect that the
accused had borrowed a sum of Rs.6,000/- and he had
discharged that amount. It is the specific suggestion that,
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So the specific defence in the cross examination is to the
effect that a cheque signed by the accused had been handed
over to him and it is that cheque that had been utilized by the
complainant to file a case.
5. But things take a totally different shape when PW2,
the Manager of the Bank was examined. The whole defence is
now attempted to be set up on the mistake of the account
number shown in the cheque as 83. There cannot be any
dispute in the light of the large number of materials available
that account No.83 is that of one Appukuttan. When the Bank
Manager was examined it is stated that it was only a mistake
that account number is shown as 83. He has also deposed
that the cheque relating to the account has been returned on
the ground that there is no money in the account. Now, the
accused is trying to make out a case which he is legally
entitled under law to project that the cheque relates to a
different account and therefore a prosecution will not lie in the
light of the provisions u/s 138. S.138 of the Negotiable
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Instruments Act specifically states that “where any cheque
drawn by a person on an account maintained by him”.
6. Now the attempted defence is that since the
account No.83 relates to a third person called Appukkuttan
and the cheque is issued from that account it will not amount
to an issuance of a cheque maintained by the accused. It has
to be remembered that an account is maintained principally on
the basis of the address given by the accused. In the cheque,
account number is given for the purpose of easy reference.
The Bank has understood it correctly that the cheque is issued
by Velayudhan and that is why after going through the
account of Velayudhan stated that there is no sufficient fund.
The account’s extract produced also would reveal the same.
So the person who had issued the cheque and the person who
had received the cheque and the Bank who had received it for
encashment had known that the cheque is issued by the
accused to his account. Then it is not proper to say that it is
not on the account maintained by him, just because a
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mistaken number is shown in the cheque leaf as 83. It is also
to be born in mind that the specific defence at the time of
cross examination of PW1 is that a cheque had been given by
the accused as security for an amount of Rs.60,000/-. So
basically the factum of issuance of a cheque by the accused is
admitted by him in cross examination of PW1. In such a
situation a mistake committed by the Bank clerk or a peon is
not to be used against the complainant to non-suit him.
Further notice had been sent. No reply was received. It would
also indicate that what is stated in the notice is not
controverted. It is true that mere non sending of a reply
notice will not ipso facto prove the case of the complainant.
But it is also an indicator to prove the case of the complainant.
So the accused was able to create some confusion in the mind
of the Court by referring to a mistaken account number. It
was not proper on the part of the Court below to have thrown
away the complaint on that ground. The materials available,
the evidence of the Bank officials and the conduct of the
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accused while cross examining PW1 all only lend credence of
the case of the complainant. Further it is also to be stated
that the non issuance of a reply notice adds to the same.
Therefore I find that the Court below has erred in acquitting
the accused. I find materials are sufficient to show that the
accused had borrowed a sum of Rs.40,000/- and had issued
Ext.P1 cheque towards the discharge of the liability which has
been returned for insufficiency of funds. Therefore I find the
accused guilty u/s 138 of the Negotiable Instruments Act.
7. Now turning to the question of sentence. I do not
want to send the accused to jail for an indefinite period if he
has got an inclination to pay the amount. It will be sufficient if
a sentence is passed by directing him to undergo
imprisonment till the raising of the Court and to pay a
compensation of Rs.40,000/- under Sec. 357(3) Cr.P.C.
which on realization shall be disbursed to the complainant and
in default of which the accused has to undergo simple
imprisonment for a period of two months.
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In the result the Crl.Appeal is disposed of as follows.
(1) The order of acquittal is set aside.
(2) The accused is found guilty u/s 138 of the
Negotiable Instruments Act and is convicted thereunder.
(3) He is sentenced to undergo imprisonment till the
raising of the Court and to pay a compensation of Rs.40,000/-
u/s 357(3) Cr.P.C. which on realization shall be disbursed to
the complainant. In case of default he shall undergo two
months simple imprisonment.
(4) The accused shall appear before the Court below on
15.10.2009 to receive the sentence and pay the
compensation, failing which the Court below shall execute the
sentence.
M.N. KRISHNAN, JUDGE.
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