IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1134 of 2004()
1. K.L.FRANCIS, S/O.LONAPPAN,
... Petitioner
Vs
1. MAGGY, W/O.MADATHUMPADI JOHN,
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/08/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.1134 OF 2004
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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
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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
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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
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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
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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
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