Appellant filed a complaint against the contesting respondent/accused before the Judicial First Class Magistrate Court-II, Thrissur alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, “the Act”). As per the impugned judgment, the learned trial Judge acquitted the respondent finding that the case propounded by him was more probable than the case set up by the appellant/complainant. Aggrieved by that finding and consequent acquittal, the complainant has come up before this Court with an appeal under Section 378(4) of the Code of Criminal Procedure.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor. There is no representation for the contesting respondent/accused. I have carefully perused the records.
3. Learned counsel for the appellant submitted that the reasoning adopted by the trial court for acquitting the accused is legally unsustainable. I have gone through the evidence in this case. PW1 is the appellant/complainant. According to PW1, Ext.P1 cheque was issued in discharge of a liability incurred by the accused after borrowing an amount of `1,25,000/- from him on 01.10.1998. Ext.P1 cheque was dishonoured when it was presented for collection. Thereafter, Ext.P4 notice, the one prescribed under the Act, was sent. The accused duly received the notice. That is evidenced by Ext.P6 acknowledgment card. No reply was sent by the accused refuting the allegations in Ext.P4. When the accused was examined as DW1, he deposed that he did not remember whether he has sent a reply or not. PW1 deposed that the accused was introduced by one of his friends three months before the advancement of amount. After verifying the credentials of the accused, he lent money on 01.10.1998. Since the amount was not returned as promised, he went to the house of the accused and obtained Ext.P1 cheque. In spite of cross-examination, PW1's evidence remains credible.
4. DW1, the accused, deposed that he had financial dealings with a finance enterprise by name Kovilakam Finance. Admittedly PW1 was one of the directors of that concern. DW1 would put forward a case that three cheques were given to the Kovilakam Finance signed by himself and his wife and one of such cheques was misused for filing this complaint. DW1 was subjected to cross-examination. There was no evidence produced to show that he had any dealings with Kovilakam Finance. That apart, he could not produce any document to show either he or his wife issued cheques to Kovilakam Finance. To a specific question whether he took any action against Kovilakam Finance for the alleged misuse of the cheque, DW1 said that he had not taken any steps. It is true that persons dealing in such business charge exorbitant rate of interest. But, in the absence of any reason to find that the appellant misused a cheque issued to Kovilakam Finance for his personal benefit, I am unable to accept the reasoning of the court below that the case of the accused was more probable than that of the appellant/complainant. The scope of presumptions under Secs.118 and 139 of the Act would render support to the case of the appellant. Therefore, I find that the acquittal of the accused is not legally justifiable.
5. It is a legal requirement that the accused should be heard at the time of proposing a sentence. But he is abstaining from this Court. Considering the nature of the offence and the fact that the litigation has a chequered career, I find that the following directions would meet the ends of justice.
The appeal is allowed. The contesting respondent/accused is convicted under Sec.138 of the Act. He shall pay a fine of `1,25,000/- (Rupees One lakh and twentyfive thousand only) for the said offence. If the fine is recovered, it shall be paid as compensation to the appellant/complainant under Sec.357(1) of the Code of Criminal Procedure. In default of payment of fine, the accused shall undergo simple imprisonment for a period of one month. Court below shall issue process to enforce the sentence forthwith on receipt of the records.
A. HARIPRASAD, JUDGE.
cks A.HARIPRASAD, J.
Crl.Appeal No.815 of 2004 JUDGMENT 20th October, 2014