A. Nizam v. E. Yasodakutty Teacher and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 **CRL.A.No. 252 of 2001** (CC.176/1998 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM) .................... ## APPELLANT/COMPLAINANT: ----------------------------------------- A.NIZAM, S/O.ABDUL KAREEM, RAFEEKA MANZIL, MOSQUE LANE, KUMARAPURAM, MEDICAL COLLEGED.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN SRI.ANUB ALIAS ## RESPONDENTS/ACCUSED AND STATE: ------------------------------------------------------- 1. E.YASODAKUTTY TEACHER, PERAL VILLAGE, LAKSHMI NIVAS, NEAR C.M.C.HOSPITAL, NILESWARAM - 671 314, KASARAGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.SHRIHARI RAO FOR R1 SMT.N.SHOBHA FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V.K.MOHANAN, J. --------------------------------------------- ## Crl.A.No. 252 of 2001 --------------------------------------------Dated this the 10[th] day of December, 2008 ## J U D G M E N T This appeal arises out of the judgment dated 27.1.2001 in C.C.No.176 of 1998, which is a case instituted upon a private complaint filed by the appellant/complainant for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). By the impugned judgment, the trial court acquitted the accused and hence this appeal. 2. The case of the complainant is that the accused is a friend of the complainant and she availed of a loan for Rs.1,00,000/- from the complainant promising to repay the same without delay. As there was default in paying the amount in time, the complainant demanded to repay the amount and on such demand, the accused issued a cheque dated 4.4.1998 for the aforesaid amount in favour of the complainant. It is the further case of the complainant that when the cheque was presented for collection, the same was returned unpaid for the ground 'insufficient fund'. Consequently, it is claimed that a lawyer notice dated 22.4.1998 was caused to send to the accused and though she received the same, no amount was paid. Instead of paying the amount, she had sent a reply notice dated 12.5.1998 denying the entire transaction. Therefore, the complainant ## CRL.A. NO. 252 of 2001 :-2-: approached the Chief Judicial Magistrate Court, Thiruvananthapuram whereupon the cognisance was taken and C.C.No.610 of 1998 was instituted. Thereafter, the case was made over to the trial court for disposal wherein the case was renumbered as C.C.No.176 of 1998. When the accused appeared, the particulars of the allegations contained in the complaint were read over and explained to her to which she pleaded not guilty. Consequently, the complainant's Power of Attorney Holder was examined as PW1 and Exts.P1 to Ext.P8 were marked. The incriminating circumstances which emerged out of the prosecution evidence were put to the accused under Section 313 of the Cr.P.C. and she denied the same. It is the further case of the accused that she had no acquaintance with the complainant and denied all the alleged transactions. It is her further case that she was a subscriber to a chitty for Rs.1,00,000/- with Vettam Chits Private Limited, Kanhangad Branch and the monthly subscription was Rs.1000/-. In the draw on 16.6.1997, she got the chitty and as per the insistence of the chitty authorities of Vettam Chitty Private Limited, she produced a blank signed cheque, a blank signed stamp paper worth Rs.50/-, a revenue stamp affixed, signed blank paper etc. and accordingly, she was given Rs.70,000/- and thereafter, she continued to pay the monthly subscription till 16.10.1997. Thereafter, the said chitty company collapsed and she could not make any further payment. Thus, it is the specific case ## CRL.A. NO. 252 of 2001 :-3-: of the accused that the blank cheque, which she had given for the purpose of availing the chitty amount from the above mentioned chitty company, has been misused to foist the present case. From the side of the defence, the accused herself was examined as DW1. One more witness was examined as DW2. Exts.D1 to D7 were also produced from the side of the accused. On the basis of the rival contentions and pleadings, six issues were framed by the court below for its consideration and determination. Finally, the court found that the complainant has miserably failed to prove that the accused committed the offence in terms of Section 138 of the N.I.Act and accordingly held that the accused is not guilty and she was acquitted under Section 255(1) of the Code of Criminal Procedure. It is the above order of acquittal challenged in this appeal. 3. I have heard learned counsel for the appellant as well as learned counsel for the first respondent/accused. 4. Learned counsel for the appellant submits that certain observations and findings arrived on by the court below are absolutely unfounded. It is the specific case of counsel for the appellant that the court has miserably failed to consider the statutory presumption available in favour of the complainant under Section 139 of the N.I.Act. According to the learned counsel, the trial court failed to appreciate the evidence of PW1 whose evidence is satisfactory and who CRL.A. NO. 252 of 2001 :-4-: deposed that he witnessed the receipt of money by the accused from the complainant. It is also the case of counsel for the appellant that the court below failed to appreciate the fact that the case of the complainant and the case of the accused are two different transactions. The counsel for the complainant has also challenged the direction issued by the court below under Section 250 of the Cr.P.C. Thus, according to the counsel, the order of acquittal passed by the court below is without any basis and contrary to the evidence and materials on record. 5. Per contra, learned counsel for the first respondent submits that no interference is called for with the order of acquittal passed by the court below. Learned counsel pointed out that all observations and findings arrived on by the court below are based upon materials and evidence on record. The complainant has miserably failed to prove the transaction between the complainant and the accused. The specific case of the accused that she has no acquaintance with the complainant so as to demand and receive such a huge amount was not effectively faced by the complainant. It is pointed out that there is no evidence from the part of the complainant so as to prove the transaction between the complainant and the accused so as to part with such a huge amount to the accused and that too without any document. It is also the contention of learned counsel that based upon the materials and evidence especially, the documentary evidence produced by the CRL.A. NO. 252 of 2001 ## :-5-: defence, the trial court had found that the accused has successfully discharged her burden to rebut the presumption available under Section 139 of the N.I.Act. Therefore, the counsel submits that the judgment of the trial court is perfectly legal and factually correct. 6. In the decision reported in Krishna Janardhan Bhat v. Dattatraya Hegde [2008(1) KLT 425 (SC)], the Apex Court has held that the existence of legally recoverable debt is not a matter of presumption under Section 139 and it does not raise a presumption in regard to the existence of a debt also. In the present case, from the very beginning itself, the specific stand taken by the accused is to the effect that she has no acquaintance with the complainant and she had not availed of any amount from him and no amount is due to him and as such, no cheque was issued as claimed by the complainant. Going by the evidence of PW1, the Power of Attorney Holder of the complainant, there is nothing to show the relationship between the complainant and the accused so as to request and avail a sum of Rs.1,00,000/- by the accused from the complainant and to part with such huge amount without any documents. In the absence of any prior acquaintance between the parties, it is impossible to accept the case of the complainant as such. The trial court has rightly observed that the complainant belongs to Thiruvananthapuram and the accused hails from Kasaragode. Since CRL.A. NO. 252 of 2001 :-6-: they are at the two extremes of Kerala State and in the absence of any evidence, to show their relationship so as to enter into such transaction, the allegation of the complainant cannot be accepted as such. Therefore, merely because the complainant is the holder of Ext.P1 cheque, no presumption can be drawn that there was a legally recoverable debt or existence of a debt. It is for the complainant to plead and establish the execution and issuance of the cheque and the circumstances relate to such issuance of cheque. Absolutely, there is no material on record to come into the above conclusion and therefore, I have no hesitation to hold that the complainant had miserably failed to prima facie establish the execution of the cheque. For the said reason, no presumption is available in favour of the complainant. 7. It is to be noted that the burden on the accused to rebut the presumption will arise only when, the complainant prima facie established the essential ingredients of Section 138 of the N.I.Act, particularly regarding the consideration and execution of the cheque. If the complainant failed to establish the above elements, the accused has no burden to discharge such responsibility. However, in the present case, by adducing evidence, including both oral and documentary evidence, she has successfully proved the falsity of the case put forward by the complainant. As pointed out earlier, even at the time of giving reply CRL.A. NO. 252 of 2001 :-7-: to the lawyer notice, she had set up a plea that there was no transaction between herself and the complainant and no cheque was executed or issued in favour of the complainant. It was her further case that she was a subscriber of Vettam Chitty Private Limited, Kanhangad Branch and the chitty amount was Rs.1,00,000/- and the monthly subscription was Rs.1,000/- and in the draw on 16.6.1997, she got the chitty and towards the availing of the chitty amount, as insisted by the chitty authorities, she had produced blank signed cheque, blank signed stamp paper worth of Rs.50/-, revenue stamp affixed and signed blank paper etc. and thus she had availed of a sum of Rs.70,000/- and she had thereafter continued to pay the monthly instalment till 16.10.1997 and the chitty company collapsed thereafter and the office was wound up. Thus, the accused gave a correct account as to how the complainant has got the possession of the cheque in question. Thus, it can be seen that the case put forward by the defence appears to be more probable when compared with the case of the complainant. The complainant has miserably failed to prove the relationship between herself and the accused and also the transaction, execution and issuance of the cheque in question. The trial court, after considering the entire matter on merits and evaluation of the evidence on record, found that the evidence adduced by the accused is sufficient enough to rebut the presumption under Section 139 of the Act. Thus the facts and circumstances involved in support CRL.A. NO. 252 of 2001 :-8-: of material evidence create serious doubt regarding the alleged issuance of Ext.P2 cheque. According to me, the said observation and finding arrived on by the court below is absolutely correct and based upon materials. On appreciation of evidence and materials on record, I find no reason to interfere with the finding arrived on by the court below. Consequently, the appeal fails. In the result, there is no merit in this appeal and accordingly, the same is dismissed. V.K.Mohanan, Judge MBS/ ## CRL.A. NO. 252 of 2001 :-9-: V.K.MOHANAN, J. --------------------------------------------------------Crl.A.NO.252 OF 2001 ----------------------------------------------------------------J U D G M E N T DATED: 10-12-2008 ## CRL.A. NO. 252 of 2001 :-10-: ## V.K.MOHANAN, J. --------------------------------------------- ## Crl.A.No. 252 of 2001 --------------------------------------------Dated this the 10[th] day of December, 2008 ## J U D G M E N T This appeal arises out of the judgment dated 27.1.2001 in C.C.No.176 of 1998, which is a case instituted upon a private complaint filed by the appellant/complainant for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). By the impugned judgment, the trial court acquitted the accused and hence this appeal. 2. The case of the complainant is that the accused is a friend of the complainant and she availed of a loan for Rs.1,00,000/- from the complainant promising to repay the same without delay. As there was default in paying the amount in time, the complainant demanded to repay the amount and on such demand, the accused issued a cheque dated 4.4.1998 for the aforesaid amount in favour of the complainant. It is the further case of the complainant that when the cheque was presented for collection, the same was returned unpaid for the ground 'insufficient fund'. Consequently, it is claimed that a lawyer notice dated 22.4.1998 was caused to send to the accused and though she received the same, no amount was paid. Instead of paying the amount, she had sent a reply notice dated 12.5.1998 denying the entire transaction. Therefore, the complainant ## CRL.A. NO. 252 of 2001 :-12-: approached the Chief Judicial Magistrate Court, Thiruvananthapuram whereupon the cognisance was taken and C.C.No.610 of 1998 was instituted. Thereafter, the case was made over to the trial court for disposal wherein the case was renumbered as C.C.No.176 of 1998. When the accused appeared, the particulars of the allegations contained in the complaint were read over and explained to her to which she pleaded not guilty. Consequently, the complainant's Power of Attorney Holder was examined as PW1 and Exts.P1 to Ext.P8 were marked. The intervening circumstances which emerged out of the prosecution evidence were put to the accused under Section 313 of the Cr.P.C. and she denied the same. It is the further case of the accused that she had no acquaintance with the complainant and denied all the alleged transactions. It is her further case that she was a subscriber to a chitty for Rs.1,00,000/- with Vettam Chits Private Limited, Kanhangad Branch and the monthly subscription was Rs.1000/-. In the draw on 16.6.1997, she got the chitty and as per the insistence of the chitty authorities of Vettam Chitty Private Limited, she produced a blank signed cheque, a blank signed stamp paper worth Rs.50/-, a revenue stamp affixed, signed blank paper etc. and accordingly, she was given Rs.70,000/- and thereafter, she continued to pay the monthly subscription till 16.10.1997. Thereafter, the said chitty company collapsed and she could not make any further payment. Thus, it is the specific case ## CRL.A. NO. 252 of 2001 :-13-: of the accused that the blank cheque, which she had given for the purpose of availing the chitty amount from the above mentioned chitty company, has been misused to foist the present case. From the side of the defence, the accused herself was examined as DW1. One more witness was examined as DW2. Exts.D1 to D7 were also produced from the side of the accused. On the basis of the rival contentions and pleadings, six issues were framed by the court below for its consideration and determination. Finally, the court found that the complainant has miserably failed to prove that the accused committed the offence in terms of Section 138 of the N.I.Act and accordingly found that the accused is not guilty and she was acquitted under Section 255(1) of the Code of Criminal Procedure. It is the above order of acquittal challenged in this appeal. 3. I have heard learned counsel for the appellant as well as learned counsel for the first respondent/accused. 4. Learned counsel for the appellant submits that certain observations and findings arrived on by the court below are absolutely unfounded. It is the specific case of counsel for the appellant that the court has miserably failed to consider the statutory presumption available in favour of the complainant under Section 139 of the N.I.Act. According to the learned counsel, the trial court failed to appreciate the evidence of PW1 whose evidence is satisfactory and who ## CRL.A. NO. 252 of 2001 ## :-14-: deposed that he witnessed the receipt of money by the accused from the complainant. It is also the case of counsel for the appellant that the court below failed to appreciate the fact that the case of the complainant and the case of the accused are two different transactions. The counsel for the complainant has also challenged the direction issued by the court below under Section 250 of the Cr.P.C. Thus, according to the counsel, the order of acquittal passed by the court below is without any basis and contrary to the evidence and materials on record. 5. Per contra, learned counsel for the first respondent submits that no interference is called for with the order of acquittal passed by the court below. Learned counsel pointed out that all observations and findings arrived on by the court below are based upon materials and evidence on record. The complainant has miserably failed to prove the transaction between the complainant and the accused. The specific case of the accused that she has no acquaintance with the complainant so as to demand and receive such a huge amount was not effectively faced by the complainant. It is pointed out that there is no evidence from the part of the complainant so as to prove the transaction between the complainant and the accused so as to part with such a huge amount to the accused and that too without any document. It is also the contention of learned counsel that based upon the materials and evidence especially, the documentary evidence produced by the CRL.A. NO. 252 of 2001 :-15-: defence, the trial court had found that the accused has successfully discharged her burden to rebut the presumption available under Section 139 of the N.I.Act. Therefore, the counsel submits that the judgment of the trial court is perfectly legal and factually correct. 6. In the decision reported in Krishna Janardhan Bhat v. Dattatraya Hegde [2008(1) KLT 425 (SC)], the Apex Court has held that the existence of legally recoverable debt is not a matter of presumption under Section 139 and it does not raise a presumption in regard to the existence of a debt also. In the present case, from the very beginning itself, the specific stand taken by the accused is to the effect that she has no acquaintance with the complainant and she had not availed of any amount from him and no amount is due to him and as such, no cheque was issued as claimed by the complainant. Going by the evidence of PW1, the Power of Attorney Holder of the complainant, there is nothing to show the relationship between the complainant and the accused so as to demand a sum of Rs.1,00,000/- by the accused from the complainant and to part with such huge amount without any documents. In the absence of any prior acquaintance between the parties, it is impossible to accept the case of the complainant as such. The trial court has rightly observed that the complainant belongs to Thiruvananthapuram and the accused hails from Kasaragode. Since they are at the two extremes of CRL.A. NO. 252 of 2001 ## :-16-: Kerala State and in the absence of any contrary evidence to show their relationship so as to enter into such transaction, the allegation of the complainant cannot be accepted as such. Therefore, merely because the complainant is the holder of Ext.P1 cheque, no presumption can be drawn that there was a legally recoverable debt or existence of a debt. It is for the complainant to plead and establish the execution and issuance of the cheque and the circumstances relate to such issuance of cheque. Absolutely, there is no material on record to come into the above conclusion and therefore, I have no hesitation to hold that the complainant had miserably failed to prima facie establish the execution of the cheque. For the said reason, no presumption is available in favour of the complainant. 7. It is to be noted that the burden on the accused to rebut the presumption will arise only when the complainant prima facie established the essential ingredients of Section 138 of the N.I.Act, particularly regarding the absence of consideration and execution of the cheque. If the complainant failed to establish the above elements, the accused has no burden to shoulder such responsibility. However, in the present case, by adducing evidence, including both oral and documentary evidence, she has successfully proved the falsity of the case put forward by the complainant. As pointed out earlier, even at the time of giving reply to the lawyer notice, she had set up a plea that there was no transaction CRL.A. NO. 252 of 2001 :-17-: between herself and the complainant and no cheque was executed or issued in favour of the complainant. It was her further case that she was a subscriber of Vettam Chitty Private Limited, Kanhangad Branch and the chitty amount was Rs.1,00,000/- and the monthly subscription was Rs.1,000/- and in the draw on 16.6.1997, she got the chitty and towards the availing of the chitty amount, as insisted by the chitty authorities, she had produced blank signed cheque, blank signed stamp paper worth of Rs.50/-, revenue stamp affixed and signed blank paper etc. and thus she had availed of a sum of Rs.70,000/- and she had thereafter continued to pay the monthly instalment till 16.10.1997 and the chitty company collapsed thereafter and the office was wound up. Thus, the accused gave a correct account as to how the complainant has got the possession of the cheque in question. Thus, it can be seen that the case put forward by the defence appears to be more probable when compared with the case of the complainant. The complainant has miserably failed to prove the relationship between herself and the accused and also the transaction, execution and issuance of the cheque in question. The trial court, after considering the entire matter on merits and evaluation of the evidence on record, found that the evidence adduced by the accused is sufficient enough to rebut the presumption under Section 139 of the Act. Thus the facts and circumstances involved in support of material evidence CRL.A. NO. 252 of 2001 :-18-: create serious doubt regarding the alleged issuance of Ext.P2 cheque. According to me, the said observation and finding arrived on by the court below is absolutely correct and based upon materials. On appreciation of evidence and materials on record, I find no reason to interfere with the finding arrived on by the court below. Consequently, the appeal fails. In the result, there is no merit in this appeal and accordingly, the same is dismissed. MBS/ V.K.Mohanan, Judge ## CRL.A. NO. 252 of 2001 :-19-: V.K.MOHANAN, J. --------------------------------------------------------Crl.A.NO.252 OF 2001 ----------------------------------------------------------------J U D G M E N T DATED: 10-12-2008 ## CRL.A. NO. 252 of 2001 :-20-: