Mohemmed Ali K. vs M.P. Salim and Others

Leave granted.

This appeal has been preferred by the Appellant against the judgment and order dated 8th March, 2011 passed by the High Court of Kerala at Ernakulam in CRL. A. No. 171 of 2003 for the offence punishable Under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as ''the N.I. Act'') and sentenced him to undergo simple imprisonment for three months and also to pay compensation of Rs. 2,00,000 (Rupees two lakh) to the complainant M.P. Salim.

The complainant filed complaint against the Appellant for the offence Under Section 138 of the N.I. Act. As per the allegation in the complaint the accused Appellant borrowed Rs. 2,00,000 from the complainant on 30th September, 2000. The accused demanded the said sum from the complainant for the purpose of repaying the debt which he had incurred to another person. At the time of borrowing of the money, the accused promised to pay back the same to the complainant by selling his mother''s property and house within a month. However on 4th November 2000 when the complainant demanded to pay the amount, instead of making the payment in cash, the accused issued the cheque (Ex. P1) drawn on his account for Rs. 2,00,000. The cheque was presented to the bank but it was returned stating "insufficient funds". The complainant''s lawyer thereafter issued notice calling upon the accused to repay the amount within 15 days but the accused failed to repay the amount. Thereafter the complainant lodged the complaint.

During the prosecution case, the complainant himself examined as PW 1 and marked Ext. P1 to P10. The accused also examined DW 1 on his side. The trial court analysed the evidence adduced by both the sides and held thus:

"It seems that the entire family of PW 1 and Rukhiya kept a huge amount ready to lend to the accused. Strange indeed. It is also in evidence that the amount shown in all those cheques is also Rs. 2,00,000 each. That also would only probilise the case put forward by the accused and would make the case forward by the complaint further suspicious."

The trial court also found that there was difference in the admitted portion in Ex. P1 and observed:

"When we compare that portion with the remaining writings and the entries in Ex. P1, per se, it can be seen that the disputed writings are with different pen and ink and in different hand writing .... Difference in ink and difference in writing in Ex. PI will only lend support to the contention of the accused and not of the complainant."

The trial court further held that the case put forward by the complainant does not appear to be convincing in view of the above observations.

Before the High Court, the complainant requested to send Ex. P1 for expert opinion as the accused denied the hand writing. He filed C.M.P. No. 6671 of 2001 Under Section 45 of the Indian Evidence Act. He also filed a petition C.M.P. No. 27 of 2002 to direct the accused to give specimen signature and specimen handwriting to compare the same with the disputed one Under Section 73 of the Indian Evidence Act. The specimen signature was also obtained as per the direction of the court. Though the prayer for reference to the expert of specimen signature of the accused was rejected, the specimen signature of the accused were called for from the bank.

After going through the statement of PW 1 and other exhibits, the High Court came to a definite conclusion that the cheque was issued by the accused and bounced due to insufficient fund in the bank and that inspite of notice, the accused failed to deposit the amount. In view of the evidence on record, the High Court convicted the accused and sentenced him for the offence Under Section 138 of the N.I. Act. We have heard learned Counsel for the parties and perused the record. We find no ground to interfere with the well reasoned judgment and order written by the High Court based on evidence. However taking into account the fact that the Appellant has already undergone sentence for about 2-1/2 months (i.e., 70 days), we reduce the sentence of imprisonment to the period already undergone but confirm the rest part of the sentence i.e., payment of compensation of Rs. 2,00,000 (Rupees two lakhs) as ordered by the High Court. In case the accused Appellant fails to pay the amount within two months, he will be liable to pay interest at the rate of 6% p.m. on the amount from the date of the judgment passed by the High Court. The appeal stands disposed of with the aforesaid observations.