SATHI RAJAN Vs. SREEKANTAN NAIR

JUDGEMENT

(1.) Appellant herein filed a private complaint before the Chief Judicial Magistrate's Court, Thrissur as S.T.No.429 of 1990 contending that first respondent committed an offence under section 138 of the Negotiable Instruments Act. Respondent No.1 borrowed Rs.20,000/- from the appellant on the strength of promissory note. When the amount was demanded a cheque was issued on 8.8.1990 for Rs.20,000/- drawn on the account of the State Bank of Travancore, Marine Drive Branch, Ernakulam. The above was dishonoured with the endorsement that refer to the drawer. The complaint was filed after completing all the formalities. There is no contention that formalities were not complied with. Notice was issued. Reply notice by the advocate was sent to the effect that the cheque in question (Ext.P1) was a stolen cheque. But, later, during trial, the defence was that the cheque was given for DW3 for a money transaction and DW3 is none other than the brother-in-law of the complainant. Evidence would also show that DW3 is a close friend of the accused and she has introduced him to the accused. Signature in the cheque is that of the accused is not disputed. When signature in the cheque and execution of the cheque are admitted, burden is on the accused to prove the defence as there is a rebuttable presumption in favour of the drawer of the cheque. Of course, that presumption can be rebutted by evidence. The court below also observed that appellant's evidence is contradictory in the sense that at one stage it is stated that the cheque was issued at her house at Chiyyaram and at another stage it was stated that it was given at Thrissur. But, the above finding is wrong because on going through the deposition of PW3 it can be seen that she stated that the amount was given at her house at Chiyyaram and the promissory note (Ext.P8) was executed at her house at Chiyyaram, but, when the amount was not given and that was demanded, cheque was given at her establishment at Thrissur and there is no contradiction at all.

(2.) The fact that execution of Ext.P8 cheque at the time when the amount was borrowed is proved by DW4, Adv.Eranimose. The above defence witness himself has stated that Rs.20,000/- was handed over by the complainant to the defendant and promissory note was executed. Therefore, the defence evidence that the cheque was given to DW3 which was, in turn, used by the complainant was proved baseless. One reason given by the trial court for acquittal of the accused is that it was not proved that the complainant has source of money to pay the same as another Rs.25,000/- was also borrowed by the accused and another case was filed which was settled out of court. But, the definite case of the complainant was that there was a family partition and her property was given to her brother-in-law for which amount was received and that amount was used for paying the money. Apart from that, complainant was doing business. She has stated that she was earning Rs.5,000/- per month.

(3.) With regard to other three cheques issued by the accused he has made a stop memo to the bank. The fact that no step memo was issued with regard to this cheque shows that this cheque is not the one which was stolen from him or used for giving money to DW3 which was allowed to be paid back. Merely because complainant stated that for the first time he has seen when Rs.20,000/- was given in the house while executing the promissory note and she stated that another Rs.25,000/- was also given to the accused on the recommendation of DW3 is not a ground for disbelieving her in the entire evidence. I also note that on the basis of the very same cheque and promissory note a civil case was filed. Decree was passed in that case and no appeal was filed. In the above circumstances, I am of opinion that an offence alleged under section 138 of the Negotiable Instruments Act is proved against the accused. However, with regard to the question of punishment, since the accused has to be heard, I remand the matter to the trial court on the question of punishment alone and parties shall appear before the trial court on 5.2.2007. I make it clear that even though conviction is confirmed, parties are free to settle the matter before the next date of posting before the magistrate. Crl. A. No.129 of 1998 is allowed. First respondent is convicted for offences punishable under section 138 for dishonour of Ext.P1 cheque for insufficiency of funds and the matter is remanded for imposition of sentence. I am of the view that no grounds are made out for proceeding against first respondent under section 341 of Cr.P.C. Hence, Crl. A. No.1212 of 2006 (Crl. Appeal No. 310 of 1997 on the file of the Sessions Court, Thrissur) is dismissed.