IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 976 of 2004()
1. K.C.PADMANABHAN, S/O.CHATHUKUTTY
... Petitioner
Vs
1. T.N.PARAMESWARAN, JAPAN VIHAR,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :21/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 976 of 2004
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Dated this the 21st day of December, 2010
JUDGMENT
This appeal is filed by the complainant in C.C.No. 232 of
2003 on the file of the Judicial First Class Magistrate Court – I,
Thamarasserry. The first respondent herein was the accused in
that case, which was filed by the complainant alleging
commission of the offence under Section 138 of the N.I. Act.
2. Briefly the case of the complainant is as follows. The
first respondent indebted to the complainant for a sum of Rs.2
lakhs, which was advanced to him as a personal loan. The
payment was made out of a home loan availed by the wife of the
complainant. . The accused issued a cheque dt. 10.2.2003 for the
said amount. The cheque was presented on 14.4.2003 for
incashment, but it was dishonoured due to insufficiency of funds
in the account of the accused. The complainant sent a lawyer
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notice to the accused intimating the dishonour of the cheque and
demanding back the amount. Even after receipt of the notice, the
accused did not reply any amount. Hence the complaint.
3. In the Magistrate Court, on the side of the complainant, PW1
was examined and Exts.P1 to P6 were marked. On the defence side,
Dws.1 to 4 were examined and Ext.D1 was marked. The learned
Magistrate, on considering the evidence, found that the accused has
rebutted the presumption under Section 139 of the N.I. Act and he was
found not guilty and acquitted under Section 255(1) Cr.P.C. Against
that judgment of acquittal the complainant filed this appeal.
4. Heard learned counsel for the appellant and the learned
counsel for the first respondent.
5. The learned counsel for the appellant submitted that the
specific case of the complainant is that his wife availed a house loan
from Sundaram Finance Ltd., Kozhikode branch, from which the
amount was given to the accused. The learned counsel for the
appellant submitted that the court below ought not to have given
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importance to the date of giving of loan by the complainant as it was
stated by him from his memory. The learned counsel for the appellant
submitted that the court below ought to have noted that once
execution of the cheque is admitted by the drawer, the presumption
under Sections 118 and 139 of the N.I. Act would arise and the
evidence adduced from the side of the accused is not sufficient to
rebut that presumption. Learned counsel for the appellant submitted
that since the complainant has proved all the necessary ingredients of
the offence under Section 138 of the N.I. Act, the learned Magistrate
is not justified in acquitting the accused. The learned counsel for the
first respondent supported the judgment of the court below.
6. When the accused was questioned under Section 313 Cr.P.C.,
he stated that he owed some money to C.G. Raveendranath on account
of purchase of gold. The complainant also had some liability. The
accused stated that he voluntered to both of them that he would
arrange to get old gold at slashed price. The accused as well as the said
Raveendranath represented that they could generate funds upon signed
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blank cheques of the accused. Three of them signed a particular
agreement for the same and the original of the agreement is with the
complainant.
7. The complainant was examined as PW1. He deposed that the
accused was his friend and that the accused borrowed Rs. 2 lakhs from
him on 10.8.2002 for the purchase of a vehicle for his business purpose
agreeing to repay the same within 15 days. Subsequently the accused
sought four months time and even after that time the accused did not
repay the amount. On 10.2.2003 the accused gave Ext.P2 cheque of
South Malabar Gramin Bank, Puthuppadi branch for that amount.
When PW1 presented that cheque for encashment, it was dishonoured
due to insufficiency of funds in the account of the accused.
8. PW1 sent a lawyer notice to the accused intimating the
dishonour of the cheque and demanding back the amount. Ext.P3 is
the dishonour memo. Ext.P4 is the copy of the lawyer notice, Ext.P5 is
the postal receipt and Ext.P6 is the postal acknowledgment. PW1
deposed that inspite of receipt of the notice, the accused did not repay
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any amount. Ext.P1 is the extract of cheque return register of South
Malabar Gramin Bank, Puthuppady branch. The learned Magistrate,
on considering the evidence, found that Ext.P2 cheque was drawn on
the account maintained by the accused and that the complainant is
entitled to get the benefit of the presumption under Section 139 of the
N.I. Act. The learned Magistrate found that according to the version
of PW1 he has given the loan amount to the accused on 10.8.2002 and
the only source of the complainant was the home loan given by the
Sundaram Finance Ltd., Kozhikode branch, which was obtained by the
complainant only on 17.8.2002 and on that basis the presumption
under Section 139 of the Act was rebutted by the accused.
9. DW4 Dileep is the officer in charge of Sundaram Finance
Ltd., Kozhikode branch. He appeared before court on summons and
stated that Rs.2.5 lakhs was sanctioned on 17.8.2002 and cheque was
given on that day. Ext.D1 is the disbursement memo issued by
Sundaram Home Finance Ltd., which shows that the cheque issued in
favour of DW3 for Rs.2.5 lakhs was dt.19.8.2002. The date of issue
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of the disbursement memo is 17.8.2002. The disbursement date is
19.8.2002. At any rate, the amount has been passed to the hands of the
complainant only after 17.8.2002.
10. DW3 is the wife of the complainant. She deposed that she
is not having an account in the KDC bank, Thamarasserry. She stated
that she had obtained the loan from Sundaram Finance Ltd. in the
month of August, 2002. A cheque for Rs.2.5 lakhs was presented
through the KDC bank, Thamarasserry and she withdrew Rs.2.5 lakhs
from that bank in order to give to the accused. When DW3 was cross
examined, she deposed that the statement of the complainant that he
gave loan to the accused on 10.8.2002 is a mistake due to slip of
memory of the complainant and that the complainant has no habit of
noting down dates. From the testimony of DW3 it is clear that the date
mentioned by the complainant as 10.8.2002 is due to his lapse of
memory and as such much importance cannot be given to the date of
borrowal as there is no dispute with regard to the execution of Ext.P2
cheque. Since the complaint is based on Ext.P2 cheque, the mere fact
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that the complainant mentioned a wrong date based on his memory, it
cannot be said that the accused has rebutted the presumption under
Section 139 of the N.I. Act. Therefore the learned Magistrate is not
justified in acquitting the accused.
11. Since the complainant has proved all the essential elements
of the offence under Section 138 of the N.I. Act, the learned
Magistrate is not justified in acquitting the accused. As the accused
committed the offence under Section 138 of the Act he is convicted
for that offence.
12. 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.2,00,000/- would meet
the ends of justice.
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13. Accordingly this appeal is allowed. The judgment of
acquittal in C.C.No. 232 of 2003 on the file of the Judicial First
Class Magistrate -I, Thamarasserry is set aside and the accused is
found guilty and convicted under Section 138 of the N.I. Act and
he is sentenced to pay a fine of Rs.2,00,000/- The said fine shall
be paid to the appellant as compensation under Section 357(1) of
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 four months from today and produce a memo to
that effect before the court below in case of direct payment. If the
accused fails 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)
tm Judge
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