George v. Hyderali

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931** ## **CRL.A.No. 1037 of 2002()** **-----------------------ST.9544/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA** **....................** ## **APPELLANT(S): COMPLAINANT:** **------------------------------------------------** **GEORGE, S/O. CHEMPAKASSERI DEVASSYKUTTY, IRINJALAKUDA, THRISSUR DISTRICT.** **BY ADV.MR.K.G.BALASUBRAMANIAN** ## **RESPONDENT(S): ACCUSED:** **--------------------------------------------** **HYDERALI, S/O. ARAKKAL MUHAMMED, THANNISSERY, IRINJALAKUDA, THRISSUR DIST.** **BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **S.S. SATHEESACHANDRAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** Crl.A.No.1037 of 2002 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 2[nd] April, 2009 ## **JUDGMENT** Complainant is the appellant. Aggrieved by the judgment of acquittal rendered in favour of the accused who was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'), he has preferred this appeal. 2. The case of the complainant is that towards discharge of a loan availed, the accused issued Ext.P1 cheque for a sum of Rs.50,000/- promising its encashment on presentation in due course. The cheque when presented was dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour and demanding the sum covered by the cheque was acknowledged, but not responded with reply or payment. Complainant, thereupon, launched prosecution against the accused for the offence under Section 138 of the N.I.Act, filing the complaint. 3. Accused on entering appearance pleaded not guilty when the particulars of the offence were made known. Complainant examined himself as P.W.1 and got marked Exts.P1 to P5 to prove his case. Accused when questioned under Section 313 Cr.P.C., and also during the course of the cross examination of the complainant as P.W.1, Crl.A.No.1037/02 - 2 - canvassed a defence that the cheque had been collected by a firm in which the complainant is a partner as a security when on the hypothecation of his vehicle a sum of Rs.10,000/- was advanced. Though that transaction had been closed, making false entries in the cheque, complainant has foisted the case on false allegations. He also denied the receipt of notice intimating dishonour. Though such defence was set up, no evidence was adduced in support thereof. 4. The learned Magistrate, after appreciating the materials produced, was of the view that when a denial of service of statutory notice on dishonour of cheque is made, the complainant has to prove due service of notice to sustain prosecution of the accused under Section 138 of the N.I.Act. Since the accused has contended that the cheque had been forged, the learned Magistrate was of the view that better evidence proving the transaction under which Ext.P1 cheque was issued was essential, and if not the presumption under Section 139 of the N.I.Act would not apply. In that view of the matter, the impugned judgment of acquittal was rendered in favour of the accused absolving him of the offence imputed. Challenging the correctness of the acquittal, the complainant has preferred this Crl.A.No.1037/02 - 3 - appeal. 5. I heard the learned counsel on both sides. The reasoning adopted by the learned Magistrate is against settled position of law, and on a mere defence canvassed that the cheque had been issued as a security, without anything more, it cannot be concluded that the presumption under Section 138 of the N.I.Act would stand repelled demanding better evidence of the complainant to prove the transaction, submits the learned counsel for the complainant. Other than some suggestions put forth during the examination of the complainant as P.W.1, no material whatsoever was placed to indicate that the cheque had been handed over as security in blank form as contended by the accused, submits the counsel. Sworn testimony of the complainant in the given facts of the case where there is nothing to doubt the intrinsic worth of his evidence, coupled with the materials produced showing statutory compliance for launching the prosecution, it is the submission of the counsel, the court below should have founded a conviction against accused of the offence imputed. On the other hand, supporting the judgment of acquittal, the learned counsel for the accused contended that the signature in Crl.A.No.1037/02 - 4 - Ext.P4 acknowledgement card differed from Ext.P1 cheque, which alone is admitted as subscribed by the accused, warranted further proof that there was due service of notice on the accused. So much so, the view taken by the court below that no notice had been issued as mandated under Section 138 (b) of the N.I.Act, according to the counsel, is unassailable. The transaction under which Ext.P1 cheque was issued as alleged by the complainant was disputed by the accused and so much so in the absence of cogent evidence proving the transaction, as rightly held by the learned Magistrate, the prosecution must fail, is the further submission of the learned counsel. Lastly, the learned counsel requested for one more opportunity to produce defence evidence in case this Court finds that the impugned judgment of acquittal is not sustainable, to prove that there was no proper service of notice before filing the complaint. 6. I have perused the records of the case giving consideration to the submissions made by the counsel on both sides. I am afraid the reasoning of the learned Magistrate that there was non-compliance in issuing a notice satisfying the requirements under Section 138 (b) of the N.I.Act before filing of the complaint, on the Crl.A.No.1037/02 - 5 - materials produced in the case, is totally fallacious . Complainant has produced a copy of the notice issued with receipt evidencing that it had been sent by registered post. He has also produced the acknowledgment card wherein the address of the accused is correctly reflected. Notice had been accepted by the addressee is so evidenced from Ext.P4 card. Merely because the accused has contended that the signature in the cheque and Ext.P4 acknowledgment card differed, no burden is cast upon the complainant to prove that there was due service. He is entitled to have a presumption under law that notice sent in the correct address of the accused had been duly served. If at all, the accused had any defence thereof that the notice had not been served, he has to prove the non-service of notice. In the facts of the case, the contention raised has no merit where the materials show that the complainant had issued a notice in the correct address by registered post and it was duly acknowledged as evidenced by Ext.P4. Leaving the acknowledgment card which would prima face show acceptance of the notice by the accused the settled position of law as enunciated by the Supreme Court is that in a case of this nature to sustain the plea of Crl.A.No.1037/02 - 6 - insufficiency of service of notice, the accused had to deposit the cheque amount within 15 days from the date of receiving the summons from the court. Otherwise any trickster cheque drawer by manipulating his signature in the acknowledgment card can contend before a court that he had not been served with the notice and as such prosecution under Section 138 of the N.I.Act would not lie against him [ **Alavi Haji v. Muhammed** (2007(3) KLT 77 (SC) ]. So, I do not find any merit in the contention raised by the accused that he had not received notice intimating dishonour of the cheque. The other reason taken by the learned Magistrate that in the nature of the defence raised by the accused, the complainant was bound to prove the transaction to draw a presumption under Section 139 of the N.I.Act is also incorrect. Of course, while taking a defence that the cheque had been issued in blank form with signature alone, the accused had denied execution of that cheque and the complainant is bound to give evidence proving its execution. Complainant had mounted the box and gave evidence in support of his case. Other than putting forth some suggestions that a blank cheque had been given as security in respect of another transaction, the accused has Crl.A.No.1037/02 - 7 - not produced any material to substantiate his defence. Vague suggestions and hunches have no place in a criminal trial. The testimony of the complainant as P.W.1 in the given facts of the case is sufficient to hold that there was due execution of the cheque. It has been proved by the materials produced that the cheque has been dishonoured due to insufficiency of funds in the account of the accused. It is further proved that a statutory notice intimating dishonour was also given, but not responded with reply or payment. The totality of the proved facts and circumstances lead to the irresistible conclusion that the accused has committed the offence under Section 138 of the N.I.Act. So, in reversal of the judgment of acquittal passed by the learned Magistrate, I convict him for the offence under Section 138 of the N.I.Act. Now, coming to the sentence, having regard to the nature of the offence under Section 138 of the N.I.Act, I am of the view that incarceration of the accused for a term in prison is not called for to meet the ends of justice. He is sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs.50,000/- to the complainant under Section 357(3) of the Cr.P.C. within two months from the date of this Crl.A.No.1037/02 - 8 - judgment. In default of payment of compensation within the stipulated time, the accused shall undergo simple imprisonment for three months. The accused shall appear and his sureties shall produce him before the Judicial First Class Magistrate Court, Irinjalakuda on 15.6.2009 and the learned Magistrate shall execute the sentence as directed. Appeal is allowed as indicated above. srd ## **S.S. SATHEESACHANDRAN, JUDGE**