Class Magistrate, Payyannur. The appellant assails judgment
of acquittal recorded in the above case dated 03.12.2007.
The 1st respondent herein is the accused in the above case.
2. Heard the learned counsel for the
detail. Perused the trial court records.
3. I shall refer the parties in this appeal as
'complainant' and 'accused' for easy reference.
CRL.A NO. 1723 OF 2008
4. On dishonour of Ext.P1 cheque dated
5. The trial court took cognizance for the
offence punishable under Section 138 of the NI Act. During
the side of the complainant. After questioning the accused
and DW2 were examined and Exts.D1 to D2 were marked.
6. Thereafter, the trial court acquitted the
accused on appreciation of evidence, holding that the
CRL.A NO. 1723 OF 2008
issued by the complainant as security for another transaction.
7. In view of the arguments advanced, the
3. Order to be passed?
8. In this case, PW1 is the complainant and he
filed chief affidavit and deposed regarding the transaction.
According to him, the accused was familiar to the
complainant and the accused borrowed an amount of
Rs.60,000/- from the complainant on 16.11.2004 and issued
CRL.A NO. 1723 OF 2008
Ext.P1 cheque dated 10.12.2004 to discharge the said
liability. He further deposed about presentation of the cheque
for collection, its dishonour, issuance of legal notice and its
return as 'unclaimed'. It was through PW1, apart from Ext.P1,
Ext.P2 cheque return memo, Ext.P3 copy of lawyer notice,
Ext.P4 postal receipt, Ext.P5 returned lawyer notice, Exts.P6
to P8 lawyer notices sent by the accused to the complainant.
9. PW1 was cross-examined by the learned
counsel for the accused suggesting that he had been
conducting steel marketing company in Pilathara and he had
visiting card in the same name with his mobile number. The
same was denied by PW1 stating that the phone number in
the visiting card is that of his brother and not of him. Later,
the visiting card was tendered in evidence through DW1, the
accused himself. As regards execution of Ext.P1 cheque,
PW1 deposed that Ext.P1 was written and signed by the
accused in his presence. It was suggested during cross-
CRL.A NO. 1723 OF 2008
examination that Ext.P1 cheque was issued on 10.2.2004
as blank signed one towards security when the complainant
undertaken the work of paving interlock bricks at the house of
the accused and his brother Abdul Kareem. It was also
suggested that out the agreed amount, Rs.38,000/- was not
paid as the work was not properly done and there was
breakage in the interlock bricks, paved in the court yard.
Those suggestions were denied by PW1. DW1 is none other
than the accused and he deposed about the entrustment of
the work to lay interlock bricks at the house of accused and
his brother at the intervention of one Balakrishnan for a total
sum of Rs.1,20,000/-. According to DW1, there was an
agreement to lay interlock bricks at the court yards of the
house of the accused and his brother and the complainant
offered 20 years guarantee for the interlocks with assurance
that the same were defect free and further the same were
capable of holding 20 ton weight. According to DW1, Ext.D1
CRL.A NO. 1723 OF 2008
is the visiting card issued by the complainant at the time of
entrusting the work and the work was completed in the year
2003. Rs.60,000/- was paid in cash in this deal and it was
agreed to pay the remaining amount orally. When the
accused demanded Ext.P1 cheque leaf for the remaining
amount for Rs.60,000/- and he had issued Ext.P1 cheque by
putting date as 10.2.2004. Later, Rs.17,000/- was paid during
the month of November and Rs.15,000/- during the 1st week
of December. Since PW1 did not lay interlocks of the
required quality as agreed, thereby the remaining amount
was not paid. Ext.D2 series photographs showing the lie of
the interlocks also produced before the court and was
marked recording objection of the complainant.
10. According to the learned counsel for the
complainant, since the evidence of PW1 as regards
execution of Ext.P1 is proved by his evidence, he is entitled
to get the benefit of presumptions available under Sections
CRL.A NO. 1723 OF 2008
118 and 139 of the NI Act in his favour though the
presumptions are rebuttable. Per contra, the argument
advanced by the learned counsel for the accused is that on
evaluating the case put up by the complainant and that of the
accused, the accused had a consistent case that Ext.P1
cheque was issued towards the balance amount for the work
of laying interlocking bricks done by the complainant. Further,
Rs.32,000/- was also paid and the remaining amount was not
paid as the work was not done by the complainant
satisfactorily, as agreed.
11. In the instant case, there is no agreement in
writing to show that there was entrustment of the work of
laying interlocking bricks as contended by the accused.
Ext.D1, the alleged visiting card of the complainant, is the
evidence let in by the accused to prove the same, even
though during cross-examination, it was confronted to PW1
suggesting so and denied by PW1. Here, the admitted case
CRL.A NO. 1723 OF 2008
of the accused is that Ext.P1 cheque was issued on
10.02.2004 for Rs.60,000/- towards the balance amount for
the work done. The accused also had a case that out of
which Rs.32,000/- (17,000 + 15,000) already paid. In order to
prove payment of Rs.17,000/- and Rs.15,000/-, as deposed
by PW1, no documentary evidence forthcoming. It is true that
DW2, Balakrishnan, it was through whom the work was
allegedly entrusted to PW1 was examined to prove
entrustment of the work and also repayment of Rs.32,000/-
(17,000 + 15,000) through him after issuance of Ext.P1. He
deposed that the remaining amount was not paid since the
work was of bad quality. It is interesting to note that even
though as per the admitted case of the accused, cheque was
issued for Rs.60,000/- towards the balance of work and out
of which Rs.32,000/- was repaid, no receipt was obtained
from the complainant to show partial discharge of the amount
covered by the cheque. Similarly, accused has no case that
CRL.A NO. 1723 OF 2008
the balance amount also was repaid. Instead the case put up
by the accused is that the said amount was not paid as the work
was of bad quality, but the said contention not proved by
convincing evidence and Ext.D2 photograph marked in evidence
is quite insufficient to do so.
12. According to the learned counsel for the
complainant, even after issuance of demand notice, no reply
notice was sent. In the instant case, the demand notice was
returned unclaimed. It is interesting to note that even though the
demand notice was issued on 20.05.2005, no reply sent. But a
reply narrating the defence case as stated was issued as per
Exts.P7 and P8 only on 29.08.2006 at a much belated stage.
13. The crucial question to be decided herein is
whether the case put up by the complainant as to borrowing of
Rs.60,000/- on 16.11.2004 and issuance of Ext.P1 cheque
dated 10.12.2004 with assurance of discharge of the said
liability is established by the complainant or the case advanced
by the accused as regards issu ance of Ext.P1
CRL.A NO. 1723 OF 2008
cheque for the remaining amount comes to Rs.60,000/- for
the work of laying of interlocking bricks is to be believed. The
evidence tendered by PW1 is that Ext.P1 cheque was issued
to discharge the liability of Rs.60,000/- which was borrowed
by the accused on 16.11.2004. According to the accused,
Ext.P1 cheque was issued for Rs.60,000/- towards the
balance of work laying interlocking bricks done at the house
of the accused and his brother. According to DW1, out of
which Rs.32,000/- was not paid as the work of laying of
interlocking bricks was not done properly as assured. As
already pointed out, there is no documentary evidence
forthcoming to show payment of Rs.32,000/- after issuance
of Ext.P1 cheque as contended by the accused apart from
their oral version as DW1 and DW2. When evaluating the
case put up by the accused, there is no reason to disbelieve
the case of the complainant that Ext.P1 was issued for the
amount borrowed by the accused from the complainant on
CRL.A NO. 1723 OF 2008
16.11.2004 where issuance of Ext.P1 for Rs.60,000/-
towards the balance amount due for the work the
complainant had done is the defence case. In such view of
the matter, it is held that the trial court went wrong in finding
that the case of the accused is more probable and the
accused did not issue Ext.P1 cheque for the discharge of the
liability as alleged in the complaint. In view of the above, the
verdict under challenge would require interference.
In the result, this appeal stands allowed and the
verdict under challenge is interfered and set aside.
Consequently, the accused is convicted for the offence
punishable under Section 138 of the NI Act and he is
sentenced to undergo simple imprisonment for a day till rising
of the court and to pay fine of Rs.1,00,000/- (Rupees one
lakh only). Fine shall be given as compensation to PW1
under Section 357(1)(b) of Cr.P.C. In default of payment of
fine, the accused shall undergo default imprisonment for a
CRL.A NO. 1723 OF 2008
period of four months. The accused is directed to appear
before the trial court at 11 am on 25.07.2025 to undergo the
modified sentence. On failure to do so, the trial court is
directed to execute the modified sentence imposed by this
Court without fail.
Registry is directed to forward a copy of this
judgment to the trial court forthwith for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
