JYOTHI PRASAD BHAT Vs. K SUNDARA RAJAN

JUDGEMENT

(1.) Appellant in the above appeals is the complainant in C.C. No. 639/2003 and 640/2003 on the file of the Judicial First Class Magistrate I, Hosdurg. Complaints were filed against the same accused K. Sundara Rajan for the offence punishable under Section 138 of the Negotiable Instruments Act. Complainant is aggrieved by the common judgment passed by the Additional Sessions Court (Ad hoc) I, Kasaragod in Criminal Appeal Nos. 391/2007 and 392/2007. The learned Magistrate found that the accused committed offence punishable under Section 138 of the Negotiable Instruments Act. By the common order dated 11-10-2007 in C.C. Nos. 639 & 640/2003 the accused was convicted and sentenced to undergo simple imprisonment for one year each and to pay compensation of Rs. 5 lakhs each to the complainant under Section 357(3) Cr.P.C. and in default of payment of compensation to undergo simple imprisonment for a further period of 4 months. The Appellate Court reversed the findings of the trial court, allowed the appeal, set aside the conviction and sentence imposed against the accused and the accused in both cases were acquitted. The parties are hereinafter referred to as the complainant and accused as arrayed in the complaint. The prosecution case is as follows:

(2.) The trial court ordered joint trial of both the complaints. Complainant adduced evidence as RW. 1 and Exts. P-1 to P-12 were marked on her behalf. Accused was questioned under Section 313 Cr.P.C. No oral evidence was adduced on behalf of the defence. Ext. D-1 was marked on behalf of the accused. Accused denied the transaction. The contention raised by the accused in the written statement is that he was forced to sign the cheques by the City Commissioner of Police, Chennai at the instance of the complainant. It is contended by the accused that there is no presumption envisaged under Section 139 of the Negotiable Instruments Act. As P.W. 1 the complainant testified that the accused was close friend of her husband, that he used to come her home frequently, that her husband died on 29-9-2002, that loan was advanced by her and her husband, that at the time of the death of her husband, an amount of Rs. 10 lakhs was due from the accused and that for repayment of the amount due the accused handed over Exts. P-1 and P-6 cheques to her. Dishonour memos were marked as Exts. P-2, P-3, P-7 and P-8. Copies of lawyer notices were marked as Exts. P-4, and P-9. Postal acknowledgment cards were marked as Ext. P-5 and P-10 respectively in C.C. No. 639/2003 and 640/2003.

(3.) Complainant testified before the court below that huge amounts were advanced to the accused during the period from 1998 to 2001. According to her, at the time of the death of her husband, an amount of Rs. 10 lakhs was due from the accused. She deposed that she was present personally along with her husband during each and every transaction. She also deposed that she had not filed any complaint before the Commissioner of Police, Chennai. She denied the contention of the accused that the accused was dragged to the Commissioner's office and forced to sign two cheques. It is also stated by her that during the period 1998-2001 about 17 lakhs were borrowed by the accused from her and her husband and out of the said amount approximately 7 lakhs were returned by the accused to her. During cross-examination Ext. D-1 was marked on behalf of the accused. Ext. D-1 money receipt shows that Rs. 20,000 was paid by the accused to the husband of the complainant on 8-8-2001. Witness was recalled and re-examined on behalf of the complainant. During examination Exts. P-1 1 and P-12 were marked subject to proof. Exts. P-11 and P-12 are the transaction pertaining to the account of P.W. 1 and her husband during the period 1998-2001. Ext. P-11 is the transaction relating to the account of her husband during the period from 3-11-1998 to 12-3-2001. Ext. P-12 is the transaction relating to the account of P.W. 1 for the period from 1-8-2000 to 5-8-2000. Ext. P-11 and P-12 statements were issued by the Bank under their seal and signature.