Dr. Kurian P. Chacko v. Mohammedkutty and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI** **MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933** **CRL.A.No. 456 of 2006 ( )** **------------------------CC.345/2003 of J.M.F.C.-I,KOCHI CRLP.70/2006 DATED 02-02-2006** ## **APPELLANT(S)/COMPLAINANT::** **-------------------------** **DR. KURIAN P.CHACKO, S/O. CHACKO, HAWA IBRI-GEN CLINIC, SURANI S. OF OMAN CR.8/4942/4 REPRESENTED BY POWER OF ATTORNEY AGENT F.N. ALEXANDER, KOOTIYANI HOUSE, OLD RAILWAY STATION ROAD, KOCHI-18.** **BY ADV. SRI.K.B.DAYAL** ## **RESPONDENT(S)/1ST RESPONDENT IS THE ACCUSED::** **---------------------------------------------** **1. MOHAMMEDKUTTY, S/O. ALAVI, THOTTUNGAL HOUSE, KULAKKALLUR P.O., MULACKAVU SHORNUR, PALGHAT DIST.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.NOUSHAD THOTTATHIL** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA** ## **P.Q.BARKATH ALI, J.** ## **-----------------------------------------Crl. A. NO. 456 OF 2006 -----------------------------------------Dated this the 27[th] day of February, 2012** ## **J U D G M E N T** The appellant is the complainant in CC No:345/2003 on the file of Judicial First Class Magistrate-I, Kochi. He filed a complaint under Section 138 of the Negotiable Instruments Act before the lower Court against the 1[st] respondent/accused. The learned Magistrate by the impugned judgment dated 16.11.2005 dismissed the complaint on the ground that complainant has failed to prove his case and acquitted the accused. The complainant has now come up in appeal with special leave challenging the said judgment of the lower court. 2. The case of the appellant/complainant as testified by him as PW1 before the lower court and as detailed in complaint, in brief, is this:- Accused borrowed an amount of `5,00,000/- (Rupees five lakhs only) from the complainant Crl. A. NO. 456 OF 2006 **==> picture [20 x 8] intentionally omitted <==** and to discharge that liability accused issued the cheque, Ext.P2, dated August 1, 2002, drawn on the Perinthalmanna Service Co-operative Bank Ltd., which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice, Ext.P5, dated August 26, 2002, the accused did not repay the amount. Therefore, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act before the lower court. 3. The learned Magistrate, on receipt of the complaint, recorded the sworn statement of the complainant and took cognizance of the offence. The power of attorney holder of the complainant was examined as PW1 and Exts.P1 to P7 were marked on his side. When questioned under Section 313 of Cr.P.C., accused submitted that about four years ago, he borrowed an amount of 10,000 Dirhams from the complainant while both of them were in Crl. A. NO. 456 OF 2006 **==> picture [20 x 8] intentionally omitted <==** gulf country and to discharge that liability, he issued a blank signed cheque that to the complainant, that while the accused was in jail in gulf country, PW1 has stolen one of his blank signed cheques kept in his room, which was misused by the complainant and created Ext.P2. No defence evidence was adduced. 4. On an appreciation of evidence, the learned Magistrate found that PW1, the power of attorney holder, has no direct knowledge regarding the transaction nor the issuance of Ext.P2 cheque by the accused and held that complainant has failed to prove his case and dismissed the complaint and acquitted the accused. The complainant has now come up in appeal with special leave challenging the said judgment of the lower court. 5. Heard the learned counsel for the appellant/complainant. Though notice was served on 1[st] Crl. A. NO. 456 OF 2006 ..4.. respondent/accused, he remained absent. 6. The following points arise for consideration. a) Whether the finding of the lower court that the complainant has failed to prove his case and consequently dismissing the complaint can be sustained? b) Whether judgment of the lower court acquitting the accused is sustainable? c) What is the offence committed by the accused? d) In the event of conviction, what is the proper punishment? 7. PW1 is the power of attorney holder of the complainant. He testified in terms of the complaint in the lower court. Further his evidence is supported by Exts.P1 to P7. 8. The accused when questioned under Section 313 of Cr.P.C., submitted that he does not owe any amount to the complainant. But when PW1 was cross-examined, the Crl. A. NO. 456 OF 2006 **==> picture [20 x 8] intentionally omitted <==** suggestion was that a blank signed cheque was given to the complainant while borrowing 10,000 Dirhams from the complainant while both of them were in gulf country, and misusing that cheque, PW1 created Ext.P2. It was also suggested during the cross-examination of PW1 that somebody has stolen his signed blank cheque from his house while he was in jail in gulf country and that complainant must have obtained the same and created Ext.P2. Thus, the accused has taken inconsistent stand. But he has admitted his signature in Ext.P2 cheque. That being so, presumption envisaged under Section 118 and 139 of the Negotiable Instruments Act is available to the complainant as held by the apex court in **K.N. Beena v. Muniyappan ((2001) 8 Supreme Court Cases 458)** . No evidence was adduced by the accused to rebut the above presumption. Under these circumstances, I feel that the finding of the lower court that complainant has not proved his case, cannot be sustained. Since accused has admitted Crl. A. NO. 456 OF 2006 **==> picture [20 x 8] intentionally omitted <==** the signature in Ext.P2 cheque, it has to be presumed that the same was issued for a legally enforcible debt. Accused has failed to prove that there was no debt or liability. Therefore, I set aside the finding of the lower court that the complainant has failed to prove his case and hold that it is proved that accused has borrowed `5,00,000/- (Rupees five lakhs only) from the complainant and issued the cheque, Ext.P2, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice, accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, I convict the accused thereunder. 9. As regards sentence, the transaction is of the year 2002. Therefore, a lenient view is taken and I hold that a sentence of imprisonment till the rising of the Court and to pay a compensation of `5,00,000/- (Rupees five lakhs only) Crl. A. NO. 456 OF 2006 ..7.. to the complainant would meet the ends of justice. 10. In the result, this appeal is allowed. Finding of the lower court that accused is not guilty of the offences punishable under Section 138 of the Negotiable Instruments Act, is set aside. The accused is found guilty of the offences punishable under Section 138 of the Negotiable Instruments Act. I, therefore, convict him thereunder. He is sentenced to undergo imprisonment till the rising of the Court and to pay a compensation of `5,00,000/- (Rupees five lakhs only) to the complainant, in default to undergo simple imprisonment for a period of six months. He shall surrender before the trial court on or before March 30, 2012, to suffer the sentence. Three-months time is granted for payment of compensation. His bail bonds are cancelled. ## Sd/- **P. Q. BARKATH ALI, JUDGE** bka/- //True copy// PA to Judge