IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1151 of 2001()
1. ANTONY. K.M
... Petitioner
Vs
1. PIOUSE MATHEW
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :22/11/2007
O R D E R
K.R. UDAYABHANU, J.
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CRL. A. NO. 1151 OF 2001
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Dated this the 22nd day of November, 2007
O R D E R
The appellant is the complainant in C.C. No. 170/2000 in the file
of Judicial First Class Magistrate, Erattupetta, who had initiated
proceedings under Section 138 of the Negotiable Instruments Act, in
which case the accused stands acquitted. The prosecution case is that
the 1st respondent had borrowed an amount of Rs.1,25,000/- from the
complainant and for discharging the liability he issued the impugned
cheque dated 12.03.1999 which when presented for encashment got
dishonoured for want of funds in the account of the accused. Lawyer
notice was sent demanding the payment of Rs. one lakh. On the next
day itself, the 2nd lawyer notice was send correcting the cheque
amount as Rs.1,25,000/-. Both the lawyer notices were received on
the same day. There was no repayment.
2. The evidence adduced in the matter consisted of the
testimony of PW1, Exts. P1 to P9.
3. PW1, the complainant has testified with respect to the alleged
borrowal and execution of the cheque and as to the dishonour for the
want of funds in the account of the accused. He has also proved the
relevant documents in this regard i.e., Exts.P1 to P9. He has also
CRL.A. NO. 1151/2001 : 2 :
testified that in the first notice i.e., Ext.P4, there was a mistake with
respect to the amount mentioned that is Rs. one lakh was mentioned
instead of Rs.1,25,000/-. The same is also mentioned in the
complaint. The suggestion put in the cross examination of PW1 is that
the signature in the cheque is not that of the accused and that he has
not borrowed any amount from the accused. I find that there is no
explanation as to how the cheque happened to be with the
complainant.
4. The court below has held that from the date of receipt of the
first notice, the cause of action has commenced and hence the amount
mentioned in the first notice is only Rs. one lakh and that the second
notice i.e., Ext. P7 cannot be taken into consideration and as there is
variation in the amount mentioned in the notice and the cheque the
offence could not be established.
5. I find that the findings of the court below in this regard
cannot be upheld. It is evident that the amount happened to be
wrongly mentioned in the first notice is only on account of the clerical
error at the office of the Advocate concerned. The same has been
rectified immediately. I find that there is no merit in the findings of
the courts below that the cause of action has arisen on receipt of the
CRL.A. NO. 1151/2001 : 3 :
first notice. I find that the execution of the cheque stands proved from
the testimony of PW1 and documents produced. The statutory
presumptions stand unrebutted. In the circumstances, the acquittal is
set aside. The respondent/accused is convicted for the offence under
Section 138 of the Negotiable Instruments Act and sentenced to
undergo imprisonment till the rising of the court and to pay a
compensation of Rs.1,25,000/- (Rupees one lakh and twenty five
thousand only) and in defualt to undergo simple imprisonment for
three months. The respondent/accused is granted six months time
from today onwards to remit the amount of compensation. He shall
appear before Judicial First Class Magistrate, Erattupetta on
22.05.2008 to receive sentence.
The Crl. Appeal is disposed of as above.
K.R. UDAYABHANU, JUDGE.
rv
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K.R. UDAYABHANU, J
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CRL. A. NO. 1151 of 2001
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22nd day of November, 2007
ORDER
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