Kerala High Court
K.N.Jagannivasan vs John V.K on 4 April, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY,THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936
CRL.A.No. 489 of 2003 ( )
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ST 362/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT,IRINJALAKUDA
APPELLANT(S)/COMPLAINANT:
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K.N.JAGANNIVASAN, S/O.NARAYANAN PANICKER, KALADY
KALARICKAL HOUSE, NENMANIKKARA.
BY ADVS.SRI.K.J.ERANIMOSE
SRI.P.K.MADHUSOODANAN
SRI.A.L.GEORGE
RESPONDENT(S)/ACCUSED & STATE:
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1. JOHN V.K., S/O.KUNJUVAREED, VATTAKUZHY HOUSE,
NAJLLUR, KALLUR.
2. STATEOF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.
R2 BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV
THIS CRIMINALAPPEAL HAVING BEEN FINALLY HEARD ON 04-04-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal No.489 of 2003
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Dated this the 4th day of April, 2014.
JUDGMENT
Appeal filed under Section 378(4) of the Code of Criminal Procedure Code (for short, "Cr.P.C.")
2. Appellant is aggrieved by dismissal of the complaint filed under Section 138 of the Negotiable Instruments Act (for short, "Act") against the respondent/accused.
3. Gist of the allegations in the complaint :-
The appellant/complainant agreed to purchase property from the accused and an agreement was executed on 22.11.1996. Sale price fixed was `9,500/- per cent of the land. Towards advance, the complainant paid `20,000/- on the date of agreement. It was agreed that on 22.02.1997 the sale deed would be executed. Complainant contended that he paid `32,000/- towards the balance consideration. Complainant further contended that the accused prolonged the matter on one pretext or the other. Ultimately the land deal could not be materialised. Thereafter, accused issued Ext.P1 cheque for `35,000/- in discharge of the liability that he had towards the complainant. When the cheque was presented for collection, it was dishonoured.. Ext.P1 cheque is dated 31.07.1997. It was Crl.Appeal No.489/2003 2 returned with a memo dated 13.11.1997. Complainant caused to issue a lawyer notice on 25.11.1997. Acknowledgement card produced would show that the accused received the notice on 26.11.1997. In spite of lapse of time prescribed by the statute, the accused neither sent a reply notice nor paid off the liability. Hence the complaint was lodged.
4. Trial court examined PW1, the complainant and marked seven documents on the side of the complainant. There was no defence evidence adduced.
5. Heard the learned counsel for the complainant. In spite of service of notice on respondent/accused, there was no representation. I have carefully perused the records.
6. PW1 is the complainant. According to his evidence, there was an agreement to purchase land by the complainant from the accused fixing `9,500/- as the land value per cent. It is his definite case that altogether `52,000/- was paid by him to the accused towards the consideration. Later, the complainant understood that the transaction would not go forward. Therefore, he demanded money from the accused. It is his case that a portion of the money was paid by the accused in cash to the complainant and for the remainder, Ext.P1 cheque was issued on 31.07.1997. It was presented for collection and the cheque was bounced on 13.11.1997. A statutory notice was issued to the accused on Crl.Appeal No.489/2003 3 25.11.1997. Even though the complainant had issued Ext.P7 lawyer notice, the accused did not respond to it. This case of the complainant remains credible in spite of cross-examination. It is pertinent to note that the accused has no case that he did not execute Ext.P1 cheque. There is no definite case for the accused as to how Ext.P1 cheque happened to reach the hands of the complainant. Court below is throughly mistaken in finding that the complainant has no definite case. Further the court below erred in finding that no statutory notice under proviso (b) to Section 138 of the Act was sent by demanding payment. Exts.P3, P4 and P7 read together would show that the demand as required under the statute was made within the stipulated time. It appears that the court below did not carefully go through the evidence. On consideration of the entire evidence, I am of the view that the finding of the court below that there is no proof required to attract the offence under Section 138 of the Act is completely erroneous. Learned counsel for the complainant relying on a decision in Mohanan v. Bibhukumar (2003 (2) KLT 825) contended that the finding of the court below that the complainant cannot get the benefit of presumptions under Sections 118 and 139 of the Act is also unsustainable. In the above decision, this Court held as follows:
"It is by now trite that the burden is on the accused to rebut the said presumption. The Crl.Appeal No.489/2003 4 burden on him may not be as onerous as the initial paramount burden on the complainant to prove his case beyond reasonable doubt. But at any rate the accused is bound to discharge his burden at least by the yardstick of preponderance of possibilities and probabilities as in a civil case.
The burden on the accused is akin to that on a litigant in a civil proceedings. Any fanciful defence will not suffice. The test of probabilities will have to be passed. In a prosecution under S. 138 of the Negotiable Instruments Act the complainant is not obliged to establish the liability as in a suit claiming recovery of money. That is why the presumption under S. 139 has been incorporated. Otherwise every criminal court will have to first do the work of a civil court to identify the liability and the quantum. Admission of signature in a document goes a long way in the proof of the document."
7. On appreciation of the evidence in this case, I find that the accused has committed an offence under Section 138 of the Act. Dismissal of the complaint and acquittal of the accused is without any legal basis. Hence the appeal is to be allowed in the following terms.
In the result, the appeal is allowed. Judgment in S.T.No.362 of 1998 on the file of Judicial First Class Magistrate Court, Irinjalakuda is Crl.Appeal No.489/2003 5 hereby set aside. 1st respondent/accused is convicted for an offence under Section 138 of the Act. He shall undergo imprisonment till the rising of the trial court and pay a fine of `50,000/- (Rupees fifty thousand only) and in default of payment of fine, he shall undergo simple imprisonment for a period of two months. If the fine amount is recovered, it shall be paid to the complainant as compensation under Section 357(1) Cr.P.C. The trial court shall take steps to procure the presence of the accused to serve the sentence.
A. HARIPRASAD, JUDGE.
cks Crl.Appeal No.489/2003 6 A.HARIPRASAD, J.
Crl.Appeal No.489 of 2003 JUDGMENT 4th April, 2014