Mohammed Nayas v. P.P. Sayed Mohammed and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 CRL.A.No. 2208 of 2004(B) ------------------------CC.29/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT(S): COMPLAINANT: -------------------------- MOHAMMED NAYAS, AGED 16 YEARS, S/O. P.A. SAYED MOHAMMED, PUTHOORPALLY, KANJIRAPPALLY. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. P.P. SAYED MOHAMMED, AGED 50 YEARS, PUTHUPARAMBIL, ANITHOTTAM, KANJIRAPPALLY P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.K.SUNIL FOR R1 R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON 03/01/2011 DELIVERED THE FOLLOWING: ## **M.L. JOSEPH FRANCIS, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 2208 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of January, 2010 ## **JUDGMENT** This appeal is filed by the complainant in C.C.No. 29 of 2002 on the file of the Judicial First Class Magistrate Court I, Kanjirapally. 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 accused borrowed Rs.16,800/- from the complainant in March 2001, agreeing to repay the same on demand. He issued a cheque for the said amount on 15.4.2001. The complainant presented that cheque for encashment. But it was dishonoured due to insufficiency of funds in the account of the accused. The appellant sent a registered lawyer notice to the accused on 18.10.2001 intimating the dishonour of the cheque and Crl.A. No. 2208 of 2004 2 demanding back the amount. Even after receipt of the notice on 19.10.2001, the accused did not repay any amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, Pws.1 to 3 were examined and Exts.P1 to P11 were marked. On the defence side, Dws.1 and 2 were examined. The learned Magistrate, on considering the evidence, found that the evidence adduced by the complainant is not sufficient to come to the conclusion that the accused issued Ext.P1 cheque in favour of the complainant and the accused 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. The learned counsel for the appellant submitted that the court below ought to have found that the complainant has proved the existence of debt and execution of Ext.P1 cheque by the accused in Crl.A. No. 2208 of 2004 3 discharge of that liability. The learned counsel for the appellant submitted that since the execution of Ext.P1 cheque is proved, the complainant is entitled to get the benefit of the presumption under Section 139 of the N.I. Act. Learned counsel for the appellant submitted that since the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused.. The learned counsel for the first respondent supported the judgment of the court below. 6. When the accused was questioned under Section 313 Cr.P.C., he stated that he has not received any notice and that the signature in the cheque is not correct. For proving the case of the accused, the accused himself was examined as DW2 and his friend was examined as DW1. DW1 deposed that he has acquaintance with the accused and the complainant and that the accused is engaged in timber business and the complainant is conducting a jewellery shop by name 'G. gold'. DW1 deposed that in 2001 March, when he went to the jewellery shop Crl.A. No. 2208 of 2004 4 of the complainant, he saw the accused handing over a blank unsigned cheque and a blank signed stamp paper as security for Rs.3,000/which was due from the accused to the complainant when he purchased gold ornaments from the jewellery shop of the complainant. 7. In cross examination DW1 admits that there is similarity in the signature seen in Ext.P1 and the signature of the accused seen in the Vakalath of the accused and that he does not know whether Ext.P1 is the same cheque given by the accused to the complainant in his presence. DW2 deposed that he purchased gold ornaments worth Rs.37,500/- from the jewellery shop of the complainant in March, 2001 and gave Rs.34,500/- in ready cash and for the balance amount of Rs.3,000/- he gave an unsigned blank cheque and a signed stamp paper as security. DW2 admits that he had acquaintance with the complainant for about 8 - 10 years. DW2 further admits that he was an accused in another cheque case and that he used to borrow amounts for his timber business. The case of the accused that he gave a blank unsigned cheque as security for Rs.3,000/- cannot be believed as no Crl.A. No. 2208 of 2004 5 sensible person will receive a cheque, which is unsigned, since such cheque will not serve any purpose. 8. The complainant was examined as PW1. He deposed that he had acquaintance with the accused and that in 2001 March the accused borrowed Rs.16,800/- from him and when he demanded back that amount, the accused on 5.4.2001 issued Ext.P1 cheque. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo. PW1 sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. Ext.P3 is the copy of the lawyer notice, Ext.P4 is the postal receipt and Ext.P5 is the postal acknowledgment signed by the accused. PW1 deposed that inspite of the lawyer notice the accused did not repay any amount. 9. PW2 is the Post woman of Kanjirapally Post Office. PW2 deposed that as per records the registered article mentioned in Ext.P5 postal acknowledgment was served on the addressee. PW3 is the Postmaster of Kanjirapally Post Office. He deposed that as per Crl.A. No. 2208 of 2004 6 records the registered article mentioned in Ext.P5 was served on the addressee. The address shown in Ext.P5 and the address mentioned in the bank account of the accused are one and the same. Since the registered notice is sent in the correct address of the accused, it has to be presumed that there was proper service of notice. On appreciating the testimony of PW1 in the light of the defence case, I am of the view that the case of the complainant that Ext.P1 cheque was executed by the accused in favour of the complainant appears to be true. Since execution of Ext.P1 cheque is proved, the presumption under Section 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. 10. Since the complainant has proved all the essential elements of the offence under Section 138 of the N.I. Act, the learned 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. Crl.A. No. 2208 of 2004 7 11. 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.20,000/- would meet the ends of justice. 12. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 29 of 2002 on the file of the Judicial First Class Magistrate -I, Kanjirapally 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.20,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. 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 Crl.A. No. 2208 of 2004 8 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 tm