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2018 DIGILAW 1059 (KER)

Babu v. Lathika

2018-12-18

P.UBAID

body2018
JUDGMENT : P. Ubaid, J. 1. The appellant herein is the complainant in S.T. No. 1776/2000 of the Judicial First Class Magistrate Court, Kodungallur, and the 1st respondent herein is the accused therein. The complainant brought the said prosecution under Section 138 of the Negotiable Instruments Act (the N.I. Act) on the allegation that a cheque for Rs. 45,000/- issued by the accused on 6.11.1999, in discharge of the money borrowed by her from the complainant on 26.7.1999 was bounced due to insufficiency of funds, and in spite of statutory notice, the accused failed to make payment. 2. The accused appeared before the learned Magistrate and pleaded not guilty, when the substance of the accusation was read over and explained to her. The complainant examined himself as PW1, and also proved Exts. P1 to P10 documents. When examined under Section 313, Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that the Ext. P1 cheque was in fact handed over by her as security to a police man, when she borrowed an amount of Rs. 25,000 from him. She did not adduce any evidence in defence. On an appreciation of the evidence, the trial Court found the accused not guilty. Accordingly, the accused was acquitted by judgment dated 26.11.2003. Aggrieved by the said judgment of acquittal, the complainant brought this appeal with the leave of this Court. 3. On hearing both sides, and on a perusal of the materials, including the evidence given by the complainant as PW1, I find that the accused was wrongly acquitted by the trial Court, and that, interference by this Court in appeal is absolutely necessary. The case of the complainant in the complaint itself is that, an amount of Rs. 45,000/- was borrowed by the accused at his residence, and on 6.11.1999, the accused issued a cheque for Rs. 45,000/- when the complainant demanded the amount. This is the consistent and definite evidence given by the complainant also. The Court below found that the case of the complainant is suspicious, and that the defence projected by the accused is probable. I fail to understand, why the Court below found the complainant's case suspicious. The defence projected by the accused when examined under Section 313, Cr.P.C. is that the Ext. Pl cheque in question was handed over by her as a security to a police man, when she borrowed an amount of Rs. I fail to understand, why the Court below found the complainant's case suspicious. The defence projected by the accused when examined under Section 313, Cr.P.C. is that the Ext. Pl cheque in question was handed over by her as a security to a police man, when she borrowed an amount of Rs. 25,000/- from him. It is not known, who this police man is, or what is the connection between the said police man and the complainant. Curiously enough, the defence put to the complainant by way of suggestion during cross-examination is that money was borrowed by the husband of the accused. Of course, the co-brother of the complainant is the said police man, and his name is Ramachandran. The accused has no definite case that any money was borrowed from the said Ramachandran, and that the cheque was given to Ramachandran as security. The accused does not have any probable, or consistent defence. 4. When cross-examined as PW1, the complainant stated in definite terms that an amount of Rs. 45,000/- was borrowed from him by the accused on 26.7.1999 at his residence, and when he demanded the amount on 6.11.1999, the Ext. P1 cheque was issued by the accused. It is pertinent to note that the accused has not specifically disputed or denied the execution of the cheque. When cross-examined on the' material aspects, the complainant affirmed that the cheque was given at his house by the accused, and all the writings in the cheque were made by her in his presence at his house. These necessary things were brought out in cross-examination. The complainant has given definite evidence proving the transaction of borrowal alleged in the complaint, and he has also proved the essential fact that the Ext. P1 cheque was issued, and handed over at his residence by the accused, in discharge of the amount of Rs. 45,000/- borrowed by the accused on 26.7.1999. I find that the complainant has given convincing evidence proving the transaction alleged by the complainant, and also proving the issuance of the Ext. P1 cheque in discharge of the liability. 5. The accused has no case of non-compliance of the statutory requirements for initiating prosecution. Ext. P4 is the copy of the statutory notice sent by; the complainant. I find that the complainant has given convincing evidence proving the transaction alleged by the complainant, and also proving the issuance of the Ext. P1 cheque in discharge of the liability. 5. The accused has no case of non-compliance of the statutory requirements for initiating prosecution. Ext. P4 is the copy of the statutory notice sent by; the complainant. The accused has no case that she had sufficient funds in her account to honour the cheque, or that it was bounced on some other ground. That the cheque was bounced due to insufficiency of funds is proved by the Ext. P2 memo, and also the Ext. P9 copy of the ledger account. I find that the complainant has well proved compliance of all the statutory requirements. The complaint was also filed by him within time. On an appreciation of the evidence as discussed above, I find that the Ext. P1 cheque was executed, and issued by the accused voluntarily, in discharge of a legally enforceable debt of Rs. 45,000/-. In the result, this appeal is allowed. The judgment of acquittal of the Court below dated 26.11.2003 in S.T. No. 1776/2000 is set aside, and the accused (1st respondent) is found guilty in appeal under Section 138 of the N.I. Act. The accused (1st respondent) is sentenced to undergo imprisonment till rising of the Court, and she is also directed to pay a compensation of Rs. 45,000/- (Rupees forty-five thousand only) to the complainant under Section 357(4), Cr.P.C. In case of default in making payment of compensation, she will have to undergo simple imprisonment for three months. The 1st respondent (accused) will surrender before the trial Court within four weeks from this date to serve out the sentence, and to make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial Court to enforce the sentence, and realise the amount of compensation, or enforce the default sentence.