Tomy Baby vs O.S. Shine & Anr.

This appeal has been filed at the instance of the complainant in S.T. No. 73/2010 on the files of the Judicial First Class Magistrate Court –II, North Paravur, challenging the judgment of acquittal dated 10.06.2010 in the said case. The first respondent herein is the accused in the said case and the State of Kerala, is the second respondent.

Heard the learned counsel for the appellant/complainant and the learned counsel for the first respondent/accused. Also heard the learned Public Prosecutor in detail. Perused the verdict under challenge and the records of the trial court.

On dishonour of Ext.P1 cheque for Rs.36,000/-, alleged to be issued by the accused in favour of the complainant, towards discharge of part of the liability, out of a total sum of Rs.1,06,000/-, and upon failure of the accused to make payment despite the issuance of a statutory demand notice, the complainant initiated prosecution alleging the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act', for short) by the accused/first respondent.

The learned Magistrate took cognizance for the offence punishable under Section 138 of the N.I. Act., and proceeded with the trial. PW1 and PW2 were examined and Exts. P1 to P6 were marked on the side of the prosecution. No defence evidence was adduced. On evaluating the evidence, the learned Magistrate found that the complainant's case was not believable, therefore, the accused was acquitted.

It is submitted by the learned counsel for the appellant, while attempting to upset the verdict, that the evidence of PW1 supported by the evidence of PW2, who alleged to have witnessed the handing over of Ext.P1 cheque and another cheque for an amount of Rs.70,000/-, for the balance amount of Rs.1,06,000/-, the complainant discharged his initial burden to prove the transaction, which led to the execution of Ext. P1 cheque, therefore, the learned Magistrate went wrong in acquitting the accused without believing the case advanced by the complainant by denying the benefit of presumptions under Sections 118 and 139 of the N.I. Act., in favour of the complainant.

The learned counsel for the first respondent/accused submitted that, the defence case suggested during cross examination was by admitting, borrowing of Rs.50,000/- in the year 2004 and discharge of the same, after one month, by paying Rs.14,000/-. Similarly as regards Rs.36,000/-, covered by Ext.P1 cheque, the contention raised by the accused is that, before dishonour of the same, for want of funds, the same was paid directly. Thus, there was no consideration for Ext.P1 cheque. Further the evidence of PW2 found to be untrustworthy of credit by the learned Magistrate and the said finding is only to be confirmed. Therefore, the verdict impugned is liable to be sustained.

In view of the rival submissions, the questions arise for consideration are:

Point Nos. 1 to 3:- Here PW1 filed proof affidavit and deposed before the Court that in the discharge of liability to the tune of Rs.1,06,000/-, the accused had issued a cheque for Rs.70,000/-, dated 02.11.2006 and Ext.P1 cheque for an amount of Rs.36,000/-on 10.11.2006. When he had presented Ext.P1 cheque for collection, the same was dishonoured for want of funds and despite issuance and acceptance of demand notice, the cheque amount was not repaid by the accused. It was through PW1, Ext. P1 cheque, Ext. P2 cheque return memo, Ext.P3 memo, Ext.P4 copy of lawyer notice, Ext.P5 postal receipt and Ext.P6 acknowledgement card were tendered in evidence.

During the cross-examination of PW1, while putting questions to PW1, the defence case suggested was that the accused had borrowed an amount of Rs.50,000/-, in the year 2004 and discharged the same after one month by paying Rs.14,000/- initially. It was further suggested that the balance amount of Rs. 36,000/-, covered by Ext.P1 cheque, was paid directly before presentation and dishonour of Ext.P1 cheque. In addition to the evidence of PW1, PW2 was examined by the complainant to prove issuance of Ext.P1 cheque by the accused in favour of the complainant.

In the instant case, the case advanced by the learned counsel for the first respondent/accused after admitting liability to a tune of Rs.50,000/-, in 2004 is that, Rs.14,000/-, out of the same was repaid, after one month and the remaining liability of Rs. 36,000/-, involved in Ext.P1 cheque was discharged by repaying the same directly. But such plea of discharge was denied by the complainant and according to the complainant, Ext.P1 cheque was issued to clear the liability of Rs.36,000/-. It appears that in the instant case, as regards to the issuance of Ext.P1 cheque, the contention of the accused is that it was issued for a liability to the tune of Rs. 36,000/-. But the case advanced by the learned counsel for the first respondent/accused is that the amount was directly paid and therefore, Ext.P1 cheque lacks consideration.

It is strange to note that, in fact, the defence case suggested during cross examination of PW1 is nothing but plea of discharge of the amount covered by Ext.P1 cheque.

It is the well settled law that, when a party pleads discharge, the burden lies upon that party to establish the plea of discharge by convincing evidence. In the instant case, the plea of discharge has not been proved at all. If that be so, the learned Magistrate erred in relying upon the evidence of PW2 to reject the testimony of PW1, when the same, in fact found to be credible and sufficient to find that the complainant discharged his initial burden in the matter of transaction and execution of Ext.P1 cheque by the accused, which in turn would give the benefit of presumptions under Sections 118 and 139 of the N.I. Act in favour of the complainant. That apart, PW2, in fact, supported the case of the complainant. Therefore, the finding of the trial court is found unsustainable and the verdict is liable to be interfered.

In the result, this appeal stands allowed and the verdict under challenge is interfered and set aside. Consequently, the first respondent/accused is convicted for the offence punishable under Section 138 of the N.I. Act and he is sentenced to undergo simple imprisonment for a day till rising of the court and to pay fine of Rs. 72,000/- (Rupees Seventy Two Thousand only). Fine amount, if paid or realised shall be given as compensation to PW1 under S. 357(1)(b) of Code of Criminal Procedure. In default of payment of fine, the first respondent/accused shall undergo default imprisonment for a period of four months. The first respondent/accused is directed to appear before the trial court at 11.00 a.m., on 20.07.2026 to undergo the sentence hereby imposed. On failure to do so, the trial court is directed to execute the 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.