C. Mohanan vs State of Kerala and V.V. Chandrasekharan

N.K. Balakrishnan, J.—The complainant has filed this appeal challenging the verdict of acquittal given by J.F.C.M.-II, Kannur. The complaint was filed under Sec. 138 of N.I. Act. The case of the complainant is that the accused/respondent had borrowed from him Rs. 15,000/- on 2.11.2002 and to discharge that debt Ext.P1 cheque was issued which on presentment was bounced on the ground of insufficiency of fund. Statutory notice was sent to the accused to which no reply was sent. The amount was not paid. Hence, the complaint was filed.

The complainant got himself examined as PW1 and Manager of the Bank was examined as PW2. Exts.P1 to P6 were also marked. The accused was examined as DW1. The learned Magistrate found that the accused has rebutted the presumption under Sec.139 of N.I. Act. It was also held that the complainant could not adduce satisfactory evidence to prove that the accused had borrowed Rs. 15,000/- from the complainant and Ext.P1 was issued to discharge that debt/liability and thus the accused was acquitted.

Learned counsel for the complainant would submit that the court below should have accepted the evidence given by the complainant to hold that the accused had borrowed from him Rs. 15,000/- and it was to discharge that debt Ext.P1 was issued. It is also argued that court below failed to take note of the fact that the accused did not send any reply to the statutory notice refuting the averments contained in that notice. Further it is argued that the evidence given by the accused as DW1 would also strengthen the case of the complainant that there were earlier transactions between the complainant and the accused. Even according to the accused, he had issued or handed over Ext.P1 cheque as a security evidently because there was some liability to be discharged by the accused. It was stated by the accused as DW1 that during 2001-2002 he had purchased tier from the shop of the complainant for a sum of Rs. 14,800/-. Though the accused contends that he had paid Rs. 5,000/- there is only the self serving statement of the accused. Of course, the learned counsel for the accused would submit that here the case of the complainant is that the amount was borrowed by the accused and that the accused had given evidence regarding purchase of tier only to probabilise his case that Ext.P1 happened to be given to the complainant when there was business transaction between the complainant and the accused. Even then the case of the accused that he had only handed over the cheque only as a security and that though he had discharged the debt/liability due to the complainant, he did not return the cheque is found to be unacceptable in view of the fact that the accused did not send any notice nor did he take any action to get back the cheque alleged to have been given by him as a security. Therefore, the contention advanced by the accused that Ext.P1 was given only as a security is found unacceptable.

There is no case that the accused, he is an illiterate person. He had business transactions with the complainant. In such circumstances, the evidence given by PW1 that the accused had borrowed Rs. 15,000/- and it was to discharge that liability Ext.P1 cheque was issued is found to be more reasonable and acceptable. The further fact that no reply was sent to the statutory notice would also strengthen the case of the complainant. Hence, on the totality of the evidence and circumstance I find that the complainant could prove that Ext.P1 was issued to discharge the debt of Rs. 15,000/-. Since all other statutory formalities were duly complied with the conviction should necessarily follow.

In the result, this appeal is allowed. In reversal of the verdict of acquittal, the accused/2nd respondent is found guilty of the offence under Sec. 138 of N.I. Act and he is convicted thereunder. He is sentenced to pay a fine of Rs. 17,500/- and in default he will undergo S.I. for one month. The accused/2nd respondent will pay the fine amount on or before 15.3.2012.