IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1700 of 2003()
1. VARGHESE PAUL,AGED 42 YEARS,
... Petitioner
Vs
1. SATHIYAN,S/O.PONNU SWAMY,
... Respondent
2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR
For Petitioner :SRI.V.K.GOPALAKRISHNA PILLAI
For Respondent :SRI.C.D.JOHNY
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/02/2007
O R D E R
V. RAMKUMAR, J.
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Crl. Appeal No. 1700 of 2003
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Dated, this the 5th day of February 2007
JUDGMENT
The accused in C.C. No. 701 of 2000 on the file of J.F.C.M. –
II, Aluva for an offence punishable under Sec. 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as “The Act” for short)
challenges the conviction entered and the sentence passed against him
by the said court for the said offence.
2. The above case arose out of a private complaint filed by
the first respondent herein to the following effect:-
On 20-11-2989 the accused borrowed a sum of Rs. 60,000/- from
the complainant agreeing to re-pay the said amount within two months.
On repeated demands for the amount the accused issued Ext.P1 cheque
dated 10-4-2000 drawn on the Kalamassery Branch of the Federal Bank.
When the cheque was presented for collection the same was dishonoured
for want of sufficient funds in the account of the accused A statutory
notice was issued to the accused calling upon him to pay the amount
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due under the cheque. Even though the accused received the
notice on 15-5-2000, he neither paid the amount nor sent a reply. The
accused has thereby committed an offence punishable under Sec. 138 of
the Negotiable Instruments Act.
3. On the accused pleading not guilty to the substance of
accusation read over and explained to him, the complainant was
called upon to adduce evidence in support of his case. The complainant
examined himself as P.W.1 and got marked 7 documents as Exts.P1 to
P7.
4. After the close of the prosecution evidence the accused was
questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating
circumstances appearing against him in the evidence for the prosecution.
He denied those circumstances and maintained his innocence. He
stated that Ext.P1 cheque was issued as a security when he auctioned
the chitty conducted by the complainant, that the entire chitty instalments
had been repaid by him and that the complainant evaded all earnest
attempts made by the accused to get back the cheque. To substantiate
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the said defence the accused examined himself as D.W.1 and he also
examined an independent witness as D.W.2.
5. The learned magistrate, after trial, as per judgment dated
17-2-2003 acquitted the first accused after holding that Ext.P1 cheque
was not issued in discharge of a debt or liability but was issued by
way of security. It is the said judgment which is assailed in this appeal
by the complainant after obtaining leave to file the same.
6. The only point which arises for consideration is as to whether
the appellant/complainant has succeeded in proving that the
respondent/accused has committed an offence punishable under Section 138
of the Act.
THE POINT:
7. I heard the learned counsel for the appellant and the learned
counsel for the respondent.
8. Assailing the judgment under appeal, the appellant’s counsel
made the following submissions before me :-
The complainant examined as P{.W.1 has admitted that he was not
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in the habit of insisting on security while any chitty subscriber auctioned
the chitty. If the accused had repaid all the instalments, then as a
reasonable and prudent man he would have taken the cheque back from
the complainant. The explanation offered by the accused for not taking
back the cheque is not at all convincing. According to the accused
examined as D.W.1, P.W.1 the complainant told him that the cheque was
misplaced when the office was shifted. But D.W.2 would say that P.W.1
told the accused that the cheque was with his legal adviser. D.W.2
was not present when accused went to P.W.1 to collect the amount.
It is unlikely that the accused would have subsequently handed over a
blank cheque to P.W.1 as contended by him. If as a matter of fact
Ext.P1 cheque was issued as a security for the due payment of the
instalments, the collection of the amount and the handing over of the
security would have been a simultaneous transaction. DWs 1 and 2
have not rebutted the presumption under Sec. 139 of the Act. D.W.1
has been giving different stories on all the three occasions when he
allegedly approached P.W.1 for return of the cheque. D.W.2 does not
Crl. Appeal No. 1700 of 2003 -:5:-
corroborate D.W.1.
9. I am afraid that I cannot agree with the above submissions.
Even though P.W.1 would say from the witness box that it was a
personal loan, in the complaint he has described himself as a partner
of the kuri firm. Even P.W.1 confessed during his cross-examination that
the accused was having transaction with the firm only. P.W.1 also
admitted that some subscribers used to bring their cheque books and
issued cheques while auctioning the chitty. The evidence on record
is to the effect that accused handed over the cheque at the time of
auctioning the chitty. Thereafter, he remitted the entire amount.
When the accused demanded the cheque back P.W.1 told him that the
cheque was misplaced in his office. The accused has also credibly
stated that on receipt of the statutory notice when he met P.W.1 the
latter told him that it was sent by mistake and that no action would
be taken pursuant to it. P.W. 1 has also admitted that the signature in
Ext.P1 cheque is of a particular ink and the other writings including the
date therein are in different ink. This also probabilises the defence
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version that at the time of auctioning the chitty, P.W.1 took from the
accused a blank cheque by way of security. Apart from suggesting to
P.W.1 the above defence, the accused stepped into the witness box and
examined himself as D.W.1 to substantiate his version. He also examined
D.W.2 who has given corroboration to the case of the accused. The
trial Magistrate who had the unique advantage of seeing the witnesses
and assessing their credibility was not inclined to accept the version of
the complainant examined as P.W.1. The learned Magistrate fully believed
the testimony of DWs 1 and 2. In the absence of any infirmity in
the appreciation of evidence by the trial court this court sitting in appeal
will be loath to take a different view. (Vide.State of Kerala v. Cheriyan –
1997 (2) KLT 196; Shivaji v. State of Maharashtra – AIR 1973 SC 2622
and Madhusudan Das v. Narayani Bai – AIR 1983 S.C. 113).). The
accused has thus rebutted the presumption under Sec. 139 of the
Act. The finding recorded by the trial court that the prosecution has
not succeeded in proving beyond reasonable doubt that the he cheque
was issued by the accused to the complainant in discharge of an amount
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legally due to him is, on the evidence, perfectly justified. I fully
endorse the conclusion reached by the Magistrate.
The result of the forgoing discussion is that this appeal is
without merit and is accordingly dismissed confirming the judgment passed
by the trial court acquitting the accused of the offence punishable under
Sec. 138 of the Act.
V. RAMKUMAR,
(JUDGE)
ani.
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V. RAMKUMAR, J.
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Crl. Appeal No. 1700 of 2003
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Dated, this the
day of 2006
JUDGMENT