High Court Kerala High Court

N.Jacob Paul vs C.Gopalan on 18 November, 2010

Kerala High Court
N.Jacob Paul vs C.Gopalan on 18 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1897 of 2004()


1. N.JACOB PAUL, NETTARAKONATHU VEEDU,
                      ...  Petitioner

                        Vs



1. C.GOPALAN, SEETHANKUZHI KUNNIL VEEDU,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.L.MOHANAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :18/11/2010

 O R D E R
                M. L. JOSEPH FRANCIS, J.
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                  Crl.Appeal No: 1897 of 2004
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           Dated this the 18th day of November 2010

                            JUDGMENT

This appeal is filed by the complainant in C.C. No. 342 of

2000 on the file of Judicial First Class Magistrate Court – I

Neyyattinkara. The first respondent herein was the accused in that

case, which was filed by the complainant alleging the commission

of an offence under Section 138 of N.I. Act.

2. The case of the complainant is briefly as follows. The 1st

respondent/accused borrowed a sum of Rs.31,000/- from the

complainant on 18.12.1999. To discharge the said debt the accused

issued two cheques both dated 18.2.2000 for Rs.16,000/- and

Rs.15,000/- respectively drawn on Vellanadu Service Co-operative

Bank. When the cheques were presented for encashment through

his bank namely, the Thiruvananthapuram District Co-operative

Crl.A. No: 1897 of 2004
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Bank Ltd., it was returned due to insufficiently of funds, of which

information from the bank was obtained by the appellant on

20.3.2000. Therefore the complainant had demanded payment of

money through lawyer’s notice dated 30.3.2000. But the accused

did not pay the amount. Therefore the complaint was filed.

3. Before the trial court appellant examined himself as PW1

and Exts. P1 to P8 were marked. On the side of the 1st respondent, a

witness was examined as DW1 and Exts. D1 and D2 were marked.

The defence of the first respondent was that he borrowed sum of

Rs.20,000/- from the appellant and issued 5 blank signed cheques.

The appellant then filed a case by using one of the cheques and

claiming a sum of Rs.40,000/- The respondent paid the amount and

got the matter settled. Though that cheque was returned, it was told

that the rest of the cheques were destroyed by him. On receipt of

the lawyers notice when contacted, he was told that he should pay

the expenses met for the earlier case. Therefore the 1st respondent

states that the present cheques are without consideration.

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4. The court below on the reason that the present cheque

being anterior in serial number to Ext. D1 cheque assumed that it

must have been issued earlier and therefore the evidence of the

appellant is not sufficient to prove the case and the 1st respondent

was acquitted. Against the judgment of the acquittal the

complainant filed this appeal.

5. Heard the learned counsel for the appellant and learned

Public Prosecutor.

6. The learned counsel for the appellant submitted that the

court below should have found that the complainant had proved all

the necessary ingredients of the offece under Section 138 of N.I.

Act against the accused and that the statutory presumption under

Section 139 of N.I. Act has not been rebutted by the accused . The

learned counsel further submitted that the court below should have

noted that there was no impediment on the appellant to state about

the Ext.P1 and P2 cheques in Ext.D2 and that the non-mentioning

of the other cheques in Ext.D2 cuts the roots of the defence case.

The learned counsel for the appellant submitted that the court below

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ought to have considered the fact that no reply was sent by the

accused to Ext.P6 lawyer notice. He further submitted that

assumption of the court below that Ext.P1 and P2 cheques bearing

Serial numbers anterior to Ext.D1 could not be issued at a later

stage is without basis and that it is not human course of conduct to

verify the cheque numbers on each occasion when cheques are

received from another at difference intervals. The learned counsel

for the appellant submitted that the approach of the court below

suspecting the receipt of two cheques for the amounts is also

without any basis.

7. When the accused was questioned under Section 313

Cr.P.C. his case is that he borrowed an amount of Rs.20,000/- from

the complainant. At that time he issued 5 blank signed cheques to

the complainant. The complainant then filed a case before Judicial

First Class Magistrate Court, Kattakkada by using one of the

cheques. He claimed an amount of Rs.40,000/- in that case. The

accused finally paid the entire amount to the complainant and got

the matter settled. The complainant returned the cheque used for

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filing the complaint before that court alone to the accused. He

informed the accused that rest of the cheques were destroyed by

him. While so the accused received a notice demanding the amount

covered under Ext.P1 and P2. When the complainant was

contacted, he told the accused that he should be given the expense

he met for prosecuting the earlier case. The accused, hence submits

that two of the cheques retained by the complainant are used for

filing this complaint without any consideration.

8. For proving the defence the accused examined one of his

neighbours as DW1. According to DW1 the accused borrwed an

amount of Rs.20,000/- from the complainant in January 1998. Five

cheuqes were issued by the accused towards security. Exts.P1 and

P2 included among those cheques. He further testified that the

accused repaid the entire amount by making payment of Rs.200/-

each for 115 days consecutively. A case was filed by the

complainant against the accused before the court at Kattakkada, got

settled after repaying the entire cheque amount. The cheque

involved in that case was returned to the accused as per an

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agreement entered into between the complainant and the accused.

Ext.D1 is the cheque returned to the accused. Ext.D2 is the receipt

issued by the complainant at the time of settling that case.

9. In cross examination DW1 admitted that he has no full

knowledge about the financial transaction of the accused. Ext.D1 is

the cheque dated 3.6.1998 for Rs.40,000/- which was returned to

the accused when the case pending before Kattakkada Court was

settled between the complainant and accused. Ext.D2 is the letter

dated 24.7.1999 issued by the complaint to the accused stating that

as the accused paid the entire amount of the cheque for Rs.40,000/-

the case pending before the Kattakkada Court will be withdrawn by

him. In Ext.D2 nothing is stated about the Ext.P1 and P2 cheques

involved in this case. Serial number of Ext.D1 cheque is 0226,

serial number of Ext.P2 cheque is 0223 and that of Ext.P2 cheque is

0221. The mere fact that Ext.D1 cheque bears a posterior serial

number than Ext.P1 and P2 cheques is not sufficient reason to

accept the case of the accused that he gave 5 blanks cheques when

he borrowed Rs.20,000/- in January 1998.

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10. The complainant is examined as PW1. He deposed that

on 18.12.1999 the accused borrowed Rs.31,000/- from him. The

accused then issued two cheque for the said amount to be encashed

after two months. Cheque number 221 was issued for Rs.15,000/-

and cheque No.223 was issued for Rs.16,000/-. Both the cheques

were dated 18.2.2000 and drawn on Vellanad Service Co-operative

Bank Ltd., Vellanad. The cheques are marked as Exts. P1 and P2.

11. PW1 stated that he presented Exts.P1 and P2 cheques for

collection at Thiruvananthapuram District Co-operative Bank,

Morning and evening branch, Neyyattinkara. The cheques were

dishonoured for the reason ‘funds insufficient’ as is evident from

Ext.P3 and P4 dishonour memos. Ext.P5 is the intimation slip

dated 20.3.2000 received by the complainant from his bank. The

oral testimony of PW1 and Exts.P3 to P5 are sufficient to hold that

Exts.P1 and P2 cheques were dishonoured for the reason ‘funds

insufficient’.

12. According to PW1, he got information regarding the

dishonour of Exts.P1 and P2 cheques on 20.3.2000. The same is

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evident from Ext.P5. Ext.P6 is the demand notice issued to the

accused. Postal receipt in proof of despatch is marked as Ext.P7.

The accused received the notice on 3.4.2000 which is evident from

Ext.P8 postal acknowledgment card. The accused failed to repay

the cheque amount within 15 days from 3.4.2000. The cause of

action in this case arose on 18.4.2000. The complaint is seen filed

on 2.5.2000. It is well within the statutory limit.

13. It has come out in evidence that Ext.P6 notice sent by the

complainant demanding payment of amount was accepted by the

accused. But he did not send any reply. Consequently the accused

miserably failed to avail his first and best opportunity to set forth

his defence and to prevent the complaint from taking legal action, if

the defence is true. In appreciating the evidence on record, I am of

the view that the complainant has succeeded in proving all the

ingredients to arrive at a finding that the accused committed the

offence punishable under Section 138 of N.I. Act and that the

accused failed to rebut the presumption under Sec. 139 of N.I. Act.

Therefore the learned Magistrate is not justified in acquitting the

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accused. Since the accused has committed the offence under

Section 138 of N.I. Act, he is convicted under Section 138 of N.I.

Act.

14. In the decision reported in Damodar S. Prabhu v. Sayed

Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of

dishonour of cheques, compensatory aspect of the remedy should be

given priority over the punitive aspect. Considering the facts and

circumstances of the case, I am of the view that sentencing the

accused to pay a fine of Rs.35,000/- would meet the ends of justice.

15. Accordingly this appeal is allowed. The judgment of

acquittal of the accused in C.C. No. 342 of 2000 on the file of the

Judicial First Class Magistrate Court No.I, Neyyattinkara under

Section 138 of N.I. Act is set aside and the accused is convicted

under Section 138 of N.I. Act and sentenced to pay a fine of

Rs.35,000/-.

16. The said fine shall be paid as compensation to the

complainant under Section 357(1) of Cr.P.C. The accused is

permitted either to deposit the said fine amount before the court

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below or directly pay the compensation to the complainant within

four months from today and produce a memo to that effect before

the trial court in case of direct payment. If the accused fails to

deposit or pay the said amount within the aforesaid period, the

accused shall suffer simple imprisonment for one month by way of

default sentence.

M. L. JOSEPH FRANCIS
( Judge)

dl/