G. Jayakumar v. 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. 1981 of 2003 ( ) -------------------------CC.466/2000 of J.M.F.C. COURT-I, CHERTHALA** **APPELLANT(S): ------------** **G. JAYAKUMAR, KOCHUPARAMBIL (ROHINI), MARUTHORVATTOM P.O., CHERTHALA.** **BY ADVS.SRI.GRASHIOUS KURIAKOSE SRI.B.PRAMOD** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. VIJAYAMMA, D/O RAMACHANDRAKURUP, VIJAYA NIVAS, S.L.PURAM P.O., CHERTHALA.** **R2 BY SRI.JOY THATTIL ITTOOP R1 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. 1981 OF 2003 -----------------------------------------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: 466/2000 on the file of the Judicial First Class Magistrate Court-I, Cherthala. 2. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act against the 2[nd] respondent/accused before the lower court. The learned Magistrate dismissed the complaint and acquitted the accused by the impugned judgment dated 29.07.2003. Complainant has come up in appeal by special leave challenging the said judgment of the lower Court. 3. The case of the complainant as testified by him as PW1 before the lower Court and as detailed in the complaint, in brief, is this:- Accused borrowed an amount of `25,000/- (Rupees twenty five thousand only) from the complainant on 13.02.2000. To discharge the said liability, Crl. A. NO. 1981 OF 2003 **==> picture [20 x 8] intentionally omitted <==** she issued the cheque, Ext.P1, dated 13.03.2000 drawn on the S.L. Puram branch of Dhanalakshmi Bank. When the cheque was presented for collection, it was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice, Ext.P4, dated 24.04.2000, accused did not repay the amount. Therefore, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act before the lower court. 4. The learned Magistrate, on receipt of the complaint, recorded the sworn statement of the complainant and took cognizance of the offence. Accused, on appearance before the lower Court, pleaded not guilty to the charge under Section 138 of the negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. When questioned under Section 313 of Cr.P.C., she submitted that she did not borrow any amount from the complainant or issued the cheque, Ext.P1, that her son borrowed an amount of `5,000/- (Rupees five thousand Crl. A. NO. 1981 OF 2003 **==> picture [20 x 8] intentionally omitted <==** only) from PW1 out of which `3,000/- (Rupees three thousand only) was repaid and she gave a signed blank cheque to PW1 as security and misusing that cheque, complainant created Ext.P1. The accused got herself examined as DW1 and she produced Exts.D1, D2 and D2(a) to prove her case. 5. On an appreciation of evidence, the learned Magistrate found that the accused gave a signed blank cheque as security to the complainant when her son borrowed an amount of `5,000/- (Rupees five thousand only) from him 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 by special leave challenging the said judgment of the lower court. 6. Heard the learned counsel for the appellant/complainant and the learned counsel for the 2[nd] respondent/accused. 7. The following points arise for consideration. a) Whether the finding of the lower Court that the complainant has failed to prove his Crl. A. NO. 1981 OF 2003 ..4.. case and that the accused is not guilty of the offence punishable under Section 138 of Negotiable Instruments Act can be sustained? b) Whether the judgment of the lower Court acquitting the accused can be sustained? c) In the event of conviction, what is the proper punishment? 8. The complainant testified in terms of the complaint as PW1 before the lower court. He produced Exts.P1 to P6 to prove his case. 9. The case of the accused, as testified by her as DW1, is that her son borrowed an amount of `5,000/(Rupees five thousand only) from the complainant and towards security, she gave a blank signed cheque to the complainant, that she has already repaid an amount of `3,000/- (Rupees three thousand only) and that by misusing the said cheque, complainant created Ext.P1. The lower court accepted the case of the accused and dismissed the complaint. 10. For several reasons, I am inclined to hold that the Crl. A. NO. 1981 OF 2003 **==> picture [20 x 8] intentionally omitted <==** above findings of the lower Court cannot be sustained. The specific case of the accused when examined as DW1 before the lower court was that her son, DW2, borrowed an amount of `5,000/- (Rupees five thousand only) from the complainant and as security she gave a signed blank cheque to the complainant. A single judge of this Court in **General Auto Sales v. Vijayalakshmi (2005 (1) KLT 478)** relying on a decision of the apex court in **ICDS Ltd. v. Beena Shabeer (2002 (3) KLT 218 SC)** has held that the cheque given by a guarantor was found to be within the fold of Section 138 of the Negotiable Instruments Act. It has been further held therein that even if a blank cheque has been given towards liability or even as security, when the liability is assessed and quantified, the person who had drawn the cheque cannot avoid the criminal liability arising out of Section 138 of the Negotiable Instruments Act. Further Section 138 of Negotiable Instruments Act does not, in any way, debar a person for taking up another person's liability as held by this Crl. A. NO. 1981 OF 2003 ..6.. ## Court in **Gopi v. Sudarsanan (2002 (2) KLT 606).** 11. In the light of the principles laid down in the above decision, even if the case of the accused that her son borrowed the amount from the complainant and at that time as security she gave a signed blank cheque to the complainant is accepted, she will be liable under Section 138 of the Negotiable Instruments Act. 12. That apart, as the execution of the cheque Ext.P1 is proved by the evidence of PW1 and Exts.P1 to P6, the presumption as envisaged under Sections 118 and 139 of Negotiable Instruments Act is available to the complainant. Accused was not able to rebut the said presumption satisfactorily. 13. That being so, the finding of the lower Court that as the accused has undertook the liability of her son and as security she gave Ext.P1 cheque and therefore he cannot be proceeded against under Section 138 of the Negotiable Instruments Act, cannot be sustained. Therefore, I set aside Crl. A. NO. 1981 OF 2003 ..7.. ## the said finding of the lower court. 14. Next question is, what is the offence committed by the accused. The evidence of PW1 coupled with Exts.P1 to P6 proves beyond doubt that accused borrowed an amount of `25,000/- (Rupees twenty five thousand only) from the complainant and issued Ext.P1 cheque 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 notice, Ext.P4, the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, I convict her thereunder. 15. As regards sentence, the transaction is of the year of 2000. Therefore, a lenient view is taken and I feel that sentence of the imprisonment till the rising of the Court and to pay a compensation of `30,000/- (Rupees thirty thousand only) with default sentence would meet the ends of justice. Crl. A. NO. 1981 OF 2003 **==> picture [20 x 8] intentionally omitted <==** In the result, this appeal is allowed. The finding of the lower Court that accused is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitting him, is set aside. She is found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and is convicted thereunder. She is sentenced to undergo imprisonment till the rising of the Court and to pay a compensation of `30,000/- (Rupees thirty thousand only) to the complainant, in default, to undergo simple imprisonment for three months. She shall surrender before the trial court on or before March 30, 2012, to suffer the sentence. Two-months-time is granted for payment of compensation. Her bail bonds are cancelled. Sd/- **P. Q. BARKATH ALI, JUDGE** bka/- //True copy// PA to Judge