JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High Court of Kerala at Ernakulam dated 15th December, 2010 passed in Criminal Appeal No.452 of 2004.

3. The issue involved in this appeal arises under Section 138 of the Negotiable Instruments Act. The complaint was preferred by the respondent No.1 before the Chief Judicial Magistrate, Pathanamthitta alleging that appellant borrowed a sum of Rs.1,50,000/- from him and issued a cheque for the said sum on 20.06.2001 drawn on Indian Overseas Bank, Plankamon branch in discharge of the debt. It is the further case of the respondent--complainant that when the cheque was presented for encashment through Pathanamthitta District Co-operative Bank, Kozhencherry branch, the same was returned by the bankers with the endorsement ‘insufficient funds in the account of the accused’. The respondent-complainant stated to have issued a lawyer’s notice on 14.07.2001, which was received by the appellant on 16.07.2001, but yet there was no reply from the appellant. Based on the above averments alleged in the complaint, the case was tried by the learned Chief Judicial Magistrate.

4. The respondent herein was examined as PW.1 and Exhibits P-1 to P-6 were marked. None was examined on the side of the appellant. In the questioning of the appellant made under Section 313 of Cr.P.C., the appellant took the stand that his son took the cheque from him and that if at all anything was to be recovered, it had to be made from the son of the appellant, since the appellant had not borrowed any money.

5. The learned Chief Judicial Magistrate after considering the oral and documentary evidence led on behalf of the respondent-complainant, held that the respondent-complainant was making a prevaricating statement as regards the issuance of the cheque, that he was not even aware of the date when the amount was said to have been borrowed by the appellant, that there was material alteration in the instrument and, therefore, the respondent failed to establish a case under Section 138 of the Negotiable Instruments Act. Consequently, the learned Chief Judicial Magistrate found the appellant not guilty and acquitted him under Section 255(1) of Cr.P.C. The respondent preferred the appeal in the High Court of Kerala at Ernakulam and by the impugned order the High Court reversed the judgment of the learned Chief Judicial Magistrate, convicted the appellant and imposed the sentence to pay a fine of Rs.1,50,000/- as compensation under Section 357(1) of Cr.P.C. In default of making the payment of the fine amount, the appellant was directed to suffer simple imprisonment for a period of three months.

6. We heard Mr. Romy Chacko, learned counsel for the appellant and Mr. Jogy Scaria, learned counsel for the 2nd respondent. We also perused the material papers placed before us, including the judgment of the trial Court as well as the High Court. Having considered the above, we are of the view that the High Court was in error in having reversed the judgment of the trial Court.

7. When we examine the case of the respondent-complainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial Court, we find that the trial Court had noted certain vital defects in the case of the respondent-complainant. Such defects noted by the learned Chief Judicial Magistrate were as under:

a) Though the respondent as PW-1 deposed that the accused received the money at his house also stated that he did not remember the date when the said sum of Rs.1,50,000/- was paid to him.

b) As regards the source for advancing the sum of Rs.1,50,000/-, the respondent claimed that the same was from and out of the sale consideration of his share in the family property, apart from a sum of Rs.50,000/-, which he availed by way of loan from the co-operative society of the college where he was employed. Though the respondent stated before the Court below that