High Court Kerala High Court

K.L.Francis vs Maggy on 11 August, 2009

Kerala High Court
K.L.Francis vs Maggy on 11 August, 2009
       

  

  

 
 
  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.
                     ---------------------------
                     CRL.A.NO.1134 OF 2004
                    ------------------------------
             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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