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2012 DIGILAW 773 (KER)

Mohanachandran Nair v. P. C. Cheriyan

2012-08-14

P.S.GOPINATHAN

body2012
JUDGMENT : 1. The appellant is the complainant in C.C.466 of 2000 on the file of the judicial Magistrate of the First Class, Ramankary. Before the trial court, he prosecuted the first respondent alleging offence under Section 138 of the Negotiable instruments Act (NI Act) with an allegation that the first respondent borrowed a sum of Rs. 85,000/- from the appellant and in discharge of the liability, a cheque which was marked as Ext. P2 drawn on Syndicate Bank, Kottayam Branch was issued and that when presented for collection through the State Bank of Travancore, Pazhaveedu branch, it was returned dishonoured for insufficient funds and dispite the acknowledgement of the notice demanding discharge, the liability was not discharged. 2. The first respondent in response to the process entered appearance and pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, the power of attorney holder of appellant was examined as PW1. Exts.P1 to P7 were marked. During the cross examination, certain bills were marked as Ext.D1 series. When questioned under Section 313 of the Code of Criminal Procedure, the first respondent took a defence of total denial. No further defence evidence was let in. 3. The learned Magistrate on appraisal of the evidence arrived at a conclusion that the cheque was issued as a security. Therefore, in the light of the decision reported in Sreenivasan V. State of kerala (1999(3) KLT 849), the first respondent was acquitted. Assailing the above judgment of acquittal, this appeal is preferred. 4. I have heard Advocate Sri. John Britto, the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. Perused the judgment impugned and the evidence on record. 5. PW1 had given evidence in support of the averments of the complaint. Though PW1 was subjected to searching cross examination, nothing was revealed out to doubt the veracity of his testimony. PW1 would depose that he had occasion to witness the transaction. There is nothing to suggest that PW1 is a hired witness. Though the first respondent had advanced a case that Ext.P2 was issued as a security in relation to some vegetable business, that was denied by PW1. The evidence of PW1 remains unimpeached regarding the liability as well as the issuance of the cheque. There is nothing to suggest that PW1 is a hired witness. Though the first respondent had advanced a case that Ext.P2 was issued as a security in relation to some vegetable business, that was denied by PW1. The evidence of PW1 remains unimpeached regarding the liability as well as the issuance of the cheque. His evidence is supported by the presumptions under Sections 118 and 139 of the NI Act that it was drawn for valuable consideration and issued in discharge of the liability. There is no rebuttal evidence. The evidence of PW1 that the cheque was dishonoured for insufficient funds is supported by Exts. P3 and P4 memo and intimation. There is no case for the first respondent that he had sufficient amounts in the account to honour the cheque. Therefore, it can be safely concluded that Ext.P2 cheque was dishonoured for insufficient funds. Ext.P5 with Exts.P6 and P7 would show that demanding discharge, the appellant caused notice and it was acknowledged by the first respondent. Admittedly, there is no reply and no discharge. Had he got any such defence he would have retorted to the notice. The silence of the first respondent after acknowledging notice speaks volumes. It appears that the present defence is the result of an after thought. 6. Even if it is assumed that Ext.P2 cheque was issued as a security, so long as there was no case for the first respondent that the liability, to the security of which Ext.P2 was issued was discharged, there is no legal bar in presenting the cheque for collection or launching the prosecution after complying the requisite procedures in the event of dishonour. The decision referred by the learned Magistrate was overruled by the Apex Court in the decision in I.C.D.S. Ltd. V. Beena Shabeer (2002 (3) KLT 218 (SC)). The Apex Court had held that the prosecution can be launched even if the cheque was issued to discharge the liability as a guarantor. In the above circumstance, I find that the trial court had gone wrong in finding against the appellant. The appellant had succeeded to establish the liability for issuance of the cheque, of the dishonoured of the same, notice demanding discharge and the failure of the first respondent to discharge. The appellant is entitled to succeed. The first respondent is liable to be convicted under Section 138 of the Negotiable Instruments Act. 7. The appellant had succeeded to establish the liability for issuance of the cheque, of the dishonoured of the same, notice demanding discharge and the failure of the first respondent to discharge. The appellant is entitled to succeed. The first respondent is liable to be convicted under Section 138 of the Negotiable Instruments Act. 7. Having taken note that an ordinary money transaction had dragged the first respondent to face the prosecution, I find that the sentence of imprisonment till the rising of the Court and a fine of Rs. 5000/-with direction to pay cheque amount as compensation to the appellant would meet the ends of justice. In the result, the appeal is allowed while reversing the judgment of the trial Court, the first respondent would stand convicted for offence under Section 138 of the NI Act. He is sentenced to imprisonment till the rising of the Court and a fine of Rs. 5000/-. He is further directed to pay Rs. 85,000/-as compensation to the appellant. In default of payment of fine, the appellant shall undergo simple imprisonment for one month. In default to remit the compensation, the first respondent shall undergo simple imprisonment for a further period of five months. The first respondent is granted six months time to remit the fine amount.