IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1987 of 2003()
1. E.K.MUHAMMED KUNHI
... Petitioner
Vs
1. P.EBRAHIM
... Respondent
For Petitioner :SRI.T.K.VIPINDAS
For Respondent :SMT.T.SUDHAMANI
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :10/11/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 1987 of 2003
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Dated this the 11th day of November, 2010
JUDGMENT
The appellant herein is the complainant in C.C. No. 429 of
2000 on the file of the Judicial First Class Magistrate-II,
Hosdurg. The complaint was filed against the first respondent
alleging commission of offence under Section 138 of the N.I.
Act.
2. The case of the appellant is that in discharge of the
amount due to him, the first respondent issued a cheque for
Rs.50,000/-, bearing No.0062327 dt. 8.3.2000 of Nileshwar
Service Co-operative Bank Ltd., Market Road branch, Nileshwar.
When the cheque was presented for collection, the same was
returned due to insufficiency of funds in the account of the first
respondent/accused. A memo to that effect was issued to him on
22.3.2000. He sent a registered lawyer notice to the first
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respondent on 4.4.2000 calling upon him to pay the amount covered by
the cheque, which was received by the accused on 5.4.2000. But the
first respondent did not send any reply nor repaid the amount. Hence
the complaint was filed and summons was issued to the accused.
3. The accused appeared before court and pleaded not guilty.
Hence trial was proceeded against him. The appellant/complainant was
examined as PW1. Exts.P1 to P5 were marked on the side of the
complainant. Ext.P1 is the cheque dt. 8.3.2003. Ext.P2 is the memo
dt. 22.3.2000 issued by the bank certifying the fact of dishonour.
Ext.P3 is the copy of notice dt. 4.4.2000 and Ext.P4 is the
acknowledgment card dt. 5.5.2000. The defence put up by the accused
was that he had not issued the cheque and the signature in the cheque
is not his. Eventhough the case was posted for defence evidence, he
had not produced any exhibits or examined any witness.
4. The learned Magistrate, on considering the evidence,
acquitted the accused on the ground that the evidence adduced by the
complainant is not sufficient to hold that the accused has committed an
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offence punishable under Section 138 of the N.I. Act. Against that
judgment of acquittal the complainant filed this appeal.
5. Heard learned counsel for the appellant and the learned
counsel for the first respondent.
6. The learned counsel for the appellant submitted that the court
below ought not have acquitted the accused solely on the basis of an
isolated statement by the appellant and ought to have appreciated the
testimony of PW1 in its entirety. The learned counsel for the
appellant submitted that the court below ought to have found that the
initial burden on the appellant was discharged by deposing that the
cheque was signed by the accused in his presence.
7. The learned counsel for the appellant invited my attention to
the decision reported in Dinesh Harakchand Sankla v. Kurlon Ltd.
(2006 (2) KLT 733 (Karnataka H.C.), in which it was held that:
“Even when the cheque is dishonoured by the reason
of “alteration in date and drawer’s signature differs”, the
Court has to presume by virtue of S.139 of the negotiable
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instruments Act that the cheques are received by the
holder for the discharge, in whole or in part, of any debt or
liability. Of course, this is a rebuttable presumption. The
accused alone can show to the Court that the alteration in
signature and date were not made because of insufficiency
or paucity of funds.”
8. The learned counsel for the first respondent supported the
judgment of the court below and invited my attention to the decision of
this Court reported in Bhaskaran Nair v. Mohanan (2009 (2) KLT
897), in which it was held that when the execution of the cheque is
denied, the burden is on the complainant to prove that the instrument
was duly executed by the maker.
9. In the trial court, the complainant was examined himself as
PW1. He deposed that he had acquaintance with the accused and the
accused borrowed Rs.50,000/- from him on executing Ext.P1 cheque
and the accused told him to encash that cheque on 8.3.2000. PW1
deposed that when he presented that cheque for encashment, it was
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dishonoured due to insufficiency of funds in the account of the
accused. Ext.P2 is the dishonour memo issued by the bank
dt.8.3.2000. PW1 sent a lawyer notice to the accused demanding
payment of the amount. Ext.P3 is the copy of the lawyer notice and
Ext.P4 is the postal acknowledgment signed by the accused showing
receipt of the lawyer notice. PW1 deposed that inspite of receipt of the
lawyer notice, the accused did not pay any amount and that he has not
even sent a reply. In cross examination PW1 deposed that Ext.P1
cheque was signed by the accused in his presence and that he believed
that the signature in the cheque is that of the accused. That does not
mean that the accused has not signed the cheque in his presence.
10. When the accused was questioned under Section 313
Cr.P.C., he submitted that he has not issued Ext.P1 cheque and that he
did not sign it. Ext.P2 dishonour memo shows that Ext.P1 cheque was
dishonoured not due to the reason of ‘drawer’s signature differs’, but
due to the reason that ‘funds insufficient.’ The lower court records
would show that the accused filed an application before the Magistrate
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Court to send Ext.P1 cheque for expert opinion, which was allowed by
the learned Magistrate and the accused was directed to deposit the
remuneration for the expert and that petition was subsequently
dismissed as the accused failed to remit that amount. The complainant
sent a lawyer notice and the same was received by the accused, but no
reply was given by the accused. Therefore the accused miserably
failed to avail the first and best opportunity to set forth his defence and
to prevent the complainant from taking legal action if his defence is
true. When the complainant was examined as PW1, there was no
serious challenge from the side of the accused about the genuineness
of the signature of the accused in Ext.P1 cheque.
11. Therefore, I am of the view that the case of the complainant
that the accused issued Ext.P1 cheque on receiving consideration of
Rs.50,000/- can be accepted as true. The accused has not adduced
any evidence to rebut the presumption under Section 139 of the N.I.
Act. Since the complainant had proved all the necessary ingredients of
the offence under Section 138 of the N.I. Act, I find that the accused
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has committed an offence punishable under Section 138 of the N.I.
Act and the accused is convicted under that section. Therefore, I find
that the learned Magistrate is not justified in acquitting the accused.
12. The Apex Court in its recent decision reported in
Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428
(SC)), 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.60,000/-
would meet the ends of justice.
13. In the result this appeal is allowed. The judgment in
C.C.No.429 of 2000 on the file of the Judicial First Class
Magistrate -II, Hosdurg in acquitting the accused is set aside and
the accused is convicted under Section 138 of the N.I. Act and he
is sentenced to pay a fine of Rs.60,000/- The said fine shall be
paid to the appellant as compensation under Section 357(1) of
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Cr.P.C. The accused is permitted either to deposit the fine amount
before the court below or directly pay the compensation to the
appellant within three months from today and produce a memo to
that effect before the court below in case of direct payment. If the
accused failed to deposit or pay the said amount within the
aforesaid period, he shall suffer S.I. for a period of three months
by way of default sentence.
(M.L. JOSEPH FRANCIS)
Judge
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