IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1554 of 2003()
1. THANKACHAN
... Petitioner
Vs
1. JOSE JOSEPH
... Respondent
For Petitioner :SRI.P.K.SURESH KUMAR
For Respondent :SRI.BIJU GEORGE
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. 1554 of 2003
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Dated this the 21st day of December, 2010
JUDGMENT
This appeal is filed by the complainant in C.C.No. 721 of
1999 on the file of the Judicial First Class Magistrate Court, Pala.
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 borrowed a sum of Rs. 75,000/- from the
appellant and in discharge of the said amount he issued a cheque
for Rs.75,000/- dt.11.11.1998 drawn on the Meenachil Taluk
Co-operative Employees Society Ltd., Pala branch. The first
respondent made him believe that he was having sufficient
amount in his account to honour the cheque. The appellant
presented the cheque for incashment, but it was dishonoured
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due to insufficiency of funds in the account of the accused. The
complainant sent a registered lawyer notice to the accused on
20.1.1999 intimating the dishonour of the cheque and demanding back
the amount. Even after receipt of the notice, the accused did not
repay 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,
DW1was examined and Exts.D1 to D4 were marked. The learned
Magistrate, on considering the evidence, found that the accused has
substantially 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. At the time of argument, learned counsel for the appellant
raised the following contentions. The court below ought to have held
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that the accused had conceded that Ext.P1 cheque was drawn on the
cheque leaf issued to him by the bank. The court below ought to have
held that the accused had admitted his signature in Ext.P1 and the
complainant has no case that all the other entries in Ext.P1 cheque were
made by the accused. PW1 had stated that the accused handed over
Ext.P1 cheque after filling up the same and the signature was put in
his presence. The defence set up by the accused is totally contradictory
in nature and the story put forward by him is totally improbable.
6. The court below failed to note that the civil case in respect of
the cheque was ended in dismissal and the learned Munsiff has entered
a finding that there was no adequate consideration. The learned
counsel for the appellant submitted that Ext.D1 judgment is reversed in
appeal filed by the complainant as A.S. 85 of 2001 before the Sub
Court, Pala and that E.P. is pending in execution of the decree. The
learned counsel for the first respondent supported the judgment of the
court below.
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7. When the accused was questioned under Section 313 Cr.P.C.,
his case is that the complainant is having a finance company and the
complainant requested the accused to give a loan of Rs.10,000/- for the
purpose of doing repair works to the autorikshaw of the complainant
and when the accused told him that he has no money with him, the
complainant asked the accused for a blank cheque and as the
complainant is the uncle of the accused he gave a blank signed cheque
and that blank cheque was misused by the complainant for filing the
complaint.
8. The accused was examined as DW1. To substantiate his case
DW1 deposed that the complainant asked for a loan of Rs.18,000/- for
repairing the autorikshaw belonging to the complainant and when the
accused told him that he has no money, the complainant asked the
accused to give a blank cheque for availing a loan from some finance
company and that by misusing that cheque the complainant filed this
complaint. DW1 deposed that after the dishonour of the cheque, the
complainant sent him two lawyer notices as Ext.D3 dt.20.1.1999 and
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Ext.D4 dt.18.1.1999 and that the present complaint is based on notice
dt.20.1.1999.
9. In cross examination DW1 submits that his actual name is
Jose Joseph and the first notice is sent in the name Joseph Jose. Since
the first notice was issued in the wrong name, the complaint filed on
the basis of the second notice issued in the correct name is legally
valid. The accused has not issued any reply to the notice issued by the
complainant. At one stretch the accused stated that the complainant is
a money lender and at another stretch he said that the complainant is
not in a position to arrange Rs.18,000/- for repairing the autorikshaw
driven by him. The story put forward by the accused that the
complainant asked him a sum of Rs.18,000/- and further insisted for
blank cheque to avail loan from some finance company is totally
contradictory and highly improbable and therefore it is unreliable.
10. The complainant was examined as PW1. He deposed that
the accused is his nephew and on 11.11.1998 the accused borrowed
Rs.75,000/- from him and when he demanded back that amount the
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accused issued Ext.P1 chque dt.11.11.1998 for that amount. When
Ext.P1 was presented for encashment, it was dishonoured due to
insufficiency of funds in the account of the accused. PW1 sent a
lawyer notice to the accused intimating the dishonour of the cheque
and demanding back the amount. Ext.P2 is the dishonour memo.
Ext.P3 is the copy of the lawyer notice, Ext.P4 is the postal receipt and
Ext.P5 is the postal acknowledgment. In cross examination PW1
deposed that the accused brought Ext.P1 filled up cheque and the
accused signed that cheque in his presence. On appreciating the
testimony of PW1 in the light of the defence case, I am of the view that
the accused executed Ext.P1 cheque in favour of the complainant.
Since execution of Ext.P1 cheque is proved, the presumption under
Sections 118 and 139 of the Act would apply and it is for the accused
to rebut that presumption. But the evidence adduced from the side of
the accused is not sufficient to rebut that presumption.
11. Since the complainant has proved all the essential elements
of the offence under Section 138 of the N.I. Act, the learned
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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.75,000/- would meet
the ends of justice.
13. Accordingly this appeal is allowed. The judgment of
acquittal in C.C.No. 721 of 1999 on the file of the Judicial First
Class Magistrate, Pala 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.75,000/- The said fine shall be paid
to the appellant as compensation under Section 357(1) of Cr.P.C.
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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
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)
Judge
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