IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1044 of 2002()
1. K.K.SADANANDHAN,
... Petitioner
Vs
1. V.D.SAVITHRI, W/O. VELAYUDHAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/05/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 1044 OF 2002
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Dated this the 21st day of May, 2009.
J U D G M E N T
This Crl. Appeal is preferred against the judgment of the
Sessions Judge, Kozhikode whereby the learned Sessions
Judge reversed the conviction and sentence passed by the trial
court in a 138 case. The trial court on a consideration of the
materials held that the complainant has succeeded in proving
the case and therefore convicted the accused to undergo
imprisonment for a period of six months and to pay a fine of
Rs.1,000/-. It is against that decision an appeal was preferred
and the appellate court reversed the conviction and sentence
and set the accused at liberty. It is against that decision the
present appellant has come up before this Court.
2. Heard the learned counsel for both the sides and
perused the documents, evidence and the judgments rendered
by both the Courts. It is the case of the complainant that for
the purpose of her daughter’s marriage the accused borrowed
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a sum of Rs.60,000/- with a promise to pay back the same.
As she did not pay the amount in time she was contacted and
initially further time was sought for. Again when he went for
the collection of the amount the accused had issued a cheque
Ext.P1 towards the discharge of the liability. When the said
cheque was presented for encashment it was returned with the
endorsement of insufficiency of funds and after complying with
the statutory requirements a case has been launched u/s 138
of the N.I. Act.
3. PW1 and PW2 were examined before the trial court.
PW2 is the defacto complainant. In chief examination he had
deposed in tune with the complainant and he had also faced
the cross-examination and nothing has been brought out in
the cross examination to discard his evidence. It is true that
he had deposed before Court, “…………………………………….
…………………………………………………..” He had denied the
suggestion that except the signature, body of the cheque is in
another ink. I had perused the disputed cheque as well. With
a naked eye it does not reveal that they are written at
different times. The appellate court just on the basis of the
word ‘……………….’ had reversed the judgment of the trial
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court which was improper. It has to be stated that before the
initiation of the action a notice was issued which was received
by the accused and she did not send any reply. In 313
question also she did not say that somebody else had written
the cheque. She did not adduce any evidence at all. So a
mere suggestion to the complainant during the time of cross-
examination cannot be considered as a substitute for proof
and the evidence of PW2, the complainant does not suffer
from any infirmity. So I feel the appellate court has grossly
erred in reversing the conviction and sentence passed by the
Court below and the materials available only points out that
the case has been proved. I am conscious of the fact that the
mere admission of a signature in a document is not sufficient
to prove execution of the document. But when PW2, the
complainant deposes before Court that towards the discharge
of the liability when he approached the accused she had
executed a cheque and handed over it to him by putting her
signature remains uncontroverted. I find it is sufficient.
Therefore I set aside the judgment of the appellate court and
find that the accused is guilty of the offence u/s 138 of the
N.I. Act. So far as the sentence is concerned it is true that the
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transaction is of the year 1998 and it had been pending in
Courts for more than a decade. Taking into consideration the
facts and circumstances of the case I feel this is a fit case
where the sentence of fine can be imposed as the present
statute permits the Court to levy of fine double the amount
involved in the cheque. I restrict it to the cheque amount and
therefore the appeal is disposed of as follows.
4. The order of acquittal passed by the appellate court
is set aside and it is found that the accused is guilty u/s 138 of
the N.I. Act. She is convicted and sentenced to pay a fine of
Rs.60,000/- and in case of default to undergo imprisonment
for a period of three months. The accused is granted time till
31.8.09 to wipe off the liability and in default the trial court is
directed to execute the sentence. When the fine amount is
realised it has to be disbursed to the complainant on her
application.
M.N. KRISHNAN, JUDGE.
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M.N. KRISHNAN, J.
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Crl.A. No. 1044 OF 2002
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J U D G M E N T
21st May, 2009