Ajayakumar v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## THE HONOURABLE MR. JUSTICE V.RAMKUMAR ## MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 Crl.Rev.Pet.No. 3796 of 2006() -----------------------------CRA.25/2002 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CC.232/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... ## REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ## D.AJAYAKUMAR, S/O. DEVARAJAN POTTI, JAYA MANDIRAM, PANNIVIZHA MURI, ADOOR. ## BY ADV. SRI.S.SREEKUMAR ## RESPONDENTS: RESPONDENT/COMPLAINANT ## 1. V.RADHAKRISHNAN, ANDUTHARA VAYALIL VEEDU, MANAYIL KULANGARA, ## 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.B.MOHANLAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY PASSED THE ## **V. RAMKUMAR, J.** ## *** * * * * * * * * * * * * * * * * * Crl. R.P. No. 3796 of 2006** ## *** * * * * * * * * * * * * * * * * * Dated: 11-08-2008** ## **ORDER** In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who is the accused in C.C. No.232 of 1998 on the file of the Judl. fist Class Magistrate Court-I, Kollam which was a prosecution under Sec. 138 of the Negotiable Instruments Act, 1881 (N.I. Act for short) in respect of a cheque for a sum of Rs.5,00,000/- challenges the conviction entered and the sentence passed against him concurrently by the lower appellate court for the aforementioned offence. 2. The case of the prosecution can be summarised as follows: Pursuant to the acquaintance which the accused had with P.W.1 the accused borrowed a sum of Rs. 5,00,000/- from the complainant from the residence of the complainant on 28-10-1997 and issued Ext.P1 cheque in discharge of the said liability. When the cheque was presented before the drawee brank (the Pannivizha Service Co-operative Bank Limited branch), the same was dishonoured on the ground that funds were insufficient and also on the ground that **Crl. R.P. No. 3796 of 2006** -:2:- the payment was stopped by the accused. To the statutory notice by the complainant no reply was sent by the accused nor any payment made. Hence, the complaint. 3. On the side of the complainant he examined himself as P.W.1 and got marked 8 documents as Exts.P1 to P8. 4. After the close of the prosecution evidence, the revision petitioner/accused was questioned under Sec. 313 with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before court:- He does not have any acquaintance with the complainant. He was seeing the complainant for the first time in court. He had lost a signed blank cheque along with his purse during the course of journey. The complainant had somehow or other got possession of the cheque leaf and converted the same into Ext.P1 cheque. He had informed the drawee bank regarding the loss of the cheque. He is innocent in the case. 5. When called upon to enter on his defence the revision petitioner/accused examined four witnesses as DWs 1 to 4 and got marked three documents as Exts.D1 to D3. The learned Magistrate, after trial, as per judgment dated 14-1-2002 found the revision **Crl. R.P. No. 3796 of 2006** -:3:- petitioner guilty of the offence and sentenced him to simple imprisonment for one month and directed him to pay Rs. 5,50,000/- as compensation under Sec. 357 (3) Cr.P.C. On appeal preferred by him as Crl.Appeal No.25 of 2002 before the Sessions Court, Kollam, the learned Addl. District & Sessions Judge (Adhoc-II), Kollam as per judgment dated 24-3-2006 confirmed the conviction but modified the sentence directing him to undergo simple imprisonment for six months and to pay the compensation of Rs. 5,50,000/- under Sec. 357 (3) Cr.P.C. with a default sentence of simple imprisonment for three months. Hence this Revision. 6. I heard the learned counsel appearing for the revision petitioner/accused as well as the learned counsel appearing for the first respondent/complainant. 7. On behalf of the complainant the following submissions were made:- On the right hand top of Ext.P7 ledger extract it is shown that a cheque book containing leaves from 2811 to 2820 was issued to the accused the holder of S.B. Account No. 1072 on 20-12-1994. The number of Ext. P1 cheque is 2815. Ext.P7 ledger extract shows that Cheque No. 2811 was returned on 14-7-1995 and Ext.P1 cheque was returned on 29-7-1997. Ext.D2 letter dated 22-10-1997 is a letter **Crl. R.P. No. 3796 of 2006** -:4:- claimed by the accused to have been given to the drawee bank informing the bank that a signed blank cheque along with his purse was lost and asking the bank not to make any payment against the said signed blank cheque. This is a document which has been prepared by the accused in collusion with the bank manager examined as D.W.1. D.W.1 had to admit that Ext.D2 letter does not contain any endorsement to the effect that it was received by the bank on 22-10-1997. P.W.1, the complainant is a building contractor and he was having a sum of Rs. 5,00,000/- at his residence for the past three days prior to 28-10-1997. Going by the testimony of P.W.1 the accused came to his residence on 28-10-1997 and asked for Rs. 5,00,000/- which P.w.1 gave him and towards the discharge of the said liability Ext.P1 cheque was given on the same day. In Ext.P1 cheque the payee is none other than P.W.1, the complainant. The stand taken by the accused is one of total denial. But the accused admits that Ext.P1 cheque is one pertaining to Account No. 1072 belonging to him. The only explanation which the accused would offer for the custody of the cheque leaf with P.W.1 the complainant is by way of theft. But he has admitted his signature in Ext.P1 cheque. If so, the burden was on the accused to substantiate his defence in view of the decision of the Apex Court in _**K. Bhaskara v. Sankaran**_ **Crl. R.P. No. 3796 of 2006** -:5:- _**Vaidhyan Balan**_ - _**AIR 1997 SC 3762.**_ According to the accused, Ext.P1 cheque was given by him as a blank signed cheque by way of security to one Gopikuttan with whom he had prior transaction. After the said transaction was over the blank signed cheque was returned by the said Gopikuttan to the accused and it was the said blank signed cheque which was allegedly lost by him in transit. Eventhough the accused cited the said Gopikuttan as a defence witness and eventhough the said Gopikuttan was present in court, for reasons best known to the accused he did not examine the said Gopikuttan. D.W.2 is the head constable who registered Ext.D3 F.I.R. on 19-4-2000 against P.W.1 and Gopikuttan for allegedly threatening the accused pursuant to the earlier transaction which the accused had with Gopikuttan. While D.W.3 who allegedly witnessed the settlement of the dispute between the accused and Gopikuttan would say that the settlement was before the Dy.S.P. , the very same person would say at one place that the settlement was in the presence of Sreelekha , the Superintendent of Police. Such a witness could not have been believed for a moment. In preference to this defence witness the courts below have relied on the testimony of P.W.1 to uphold the borrowal alleged by him. After the decision of the Apex Court in _**M/s. Modi Cement Ltd. v. Sri. Kuchil Kumar**_ **Crl. R.P. No. 3796 of 2006** -:6:- _**Nandi - 1998 (1) Crime 268**_ even stoppage of payment amount to offence punishable under Sec. 138 of the N.I. Act. Such being the position, the decision rendered by the courts below do not call for any interference. 8. I am afraid that I cannot agree with the above submissions. It is now well settled that notwithstanding the statutory presumptions under Sec. 118 (a) and 139 of the N.I. Act, it is for the complainant to establish his case beyond doubt, particularly, in a case where the defence is able to create some doubt in the mind of the court regarding the transaction in question. After examining the oral and documentary evidence in the case, I have no hesitation to conclude that the complainant has failed to establish his case so as to justify the conviction recorded against the revision petitioner. Going by the testimony of P.W.1 the complainant, the accused went to his house on 28-10-1997 and requested for a loan of Rs. 5 lakhs. Eventhough P.W.1 would claim to be a building contractor and would say that he started construction of buildings since 1965, no scrap of paper was produced by him in support of the same. He was aged 53 when he was examined before court on 24-2-2001. If he had started constructing buildings since 1965, then he would have been aged only 17 years in the year 1965. He unwittingly admitted that he is a **Crl. R.P. No. 3796 of 2006** -:7:- construction worker. He admitted that eventhough he has a bank account, he does not put amounts in his bank, that he is not an income tax payee, that there are no properties in his name, that he has no telephone or water connection in his house. His income as shown in his ration card is Rs. 1,500/- per year. According to him a sum of Rs. 5,00,000/- was entrusted with him for constructing a building. He would have it that he was having the said account at his residence for 2-3- days. It is interesting to note that he has no case that the accused was aware of P.W.1 having with him a sum of Rs. 5,00,000/- in his house. If his version is disbelieved then it was in the morning of 28-10-1997 that the accused went to his house and asked for a loan of Rs. 5,00,000. P.W.1 would say that he gave the amount asked for and the accused gave Ext.P1 cheque dated 28=10-1997 in return. But strangely enough the name of the payee as well as the amount in words are typewritten in Ext.P1. 9. As against the above version of P.W.1 the specific case of the accused right from Ext.D1 reply to the statutory notice and which was marked through P.W.1 is that the complainant is a total stranger to him, that he had no transaction at all with the complainant, that he had not issued the cheque in question to the complainant and that he had lost custody of a signed blank cheque while he was travelling **Crl. R.P. No. 3796 of 2006** ## -:8:- and the above fact was promptly communicated to his bank on 22-101997 itself. DW1, the Secretary of the drawee bank has deposed that Ext. D2 letter dated 22-10-1997 from the accused informing that he lost a signed blank cheque along with his purse and requesting the bank to stop payment in case the said cheque was presented for collection was received in the bank on 22-10-1997. It is true that Ext. D2 letter does not contain any endorsement on 22-10-1997 of having received the letter on that date itself. But it must remembered that the bank in question is a Service Co-operative Bank and not a Government Department where any letter or representation received is taken on file with initials and date of the officer receiving the same. Ext.P7 ledger contains an endorsement regarding the receipt of Ext.D2 letter containing the request of the accused countermanding payment. Ext.P1 cheque was admittedly dishonored on the following grounds: “i) funds insufficient ii) payment stopped” It is true that the accused raised a contention that Ext.P1 was originally issued by him as a signed blank cheque to one Gopikuttan, when he entered into a transaction with Gopikuttan and that consequent on the closure of that transaction the said Gopikuttan returned the signed blank cheque to P.W.1 the complainant that the **Crl. R.P. No. 3796 of 2006** -:9:- the accused while travelling lost his purse together with the signed blank cheque on 22-10-1997 and that he promptly informed the drawee bank about the loss of the cheque on the same day as revealed by Ext.D2. Both the courts below blamed the accused for not examining Gopikuttan and for not producing the documents pertaining to the earlier transaction which he had with Gopikuttan. The question of casting the burden on the shoulders of the accused and his examining Gopikuttan and producing documents in support of the earlier transaction would arise only if the complainant had, prima facie, established the loan transaction set up by him. When as indicated above the transaction set up by the complainant in the complaint itself is found to be improbable, it was for the complainant to establish his case beyond reasonable doubt. instead of substantiating his case he cannot indulge in picking holes in the defence. D.W.3 the person examined to prove the settlement of the transaction between the accused and Gopikuttan has deposed that the said transaction was settled before the police. Whether it was before the Dy.S.P. or before the Superintendent of Police, the fact remains that the accused had adduced evidence to show that pursuant to the settlement between himself and Gopikuttan the signed blank cheque which is entrusted with Gopikuttan was returned **Crl. R.P. No. 3796 of 2006** -:10:- by Gopikuttan and it was the said signed blank cheque which was lost while undertaking a travel on 22-7-1997. Going by the dictum laid down by the Apex Court in _**M.S. Narayana Menon alias Mani v. State of Kerala and Another - 2006 (6) SCC 39**_ it has been settled that the accused in a prosecution under Sec. 138 of the N.I. Act need only rebut the presumption by the yardstick of preponderance of probabilities. The burden on the accused in this regard is not as high as that of the prosecution. He need not totally disprove the prosecution case. The accused need not even mount the witness box to substantiate his case. He can rely on the evidence of the complainant himself to demolish the case of the complainant. Apart from Ext.D2 stop memo, the evidence of DW1 the bank manager was sufficient to rebut the presumption. That apart, the accused had adduced further evidence as to show he lost possession of the signed blank cheque which was in his custody. The factum of theft was duly intimated to the drawee bank. Under these circumstances, the courts below were not justified in ignoring these vital aspects and recording the conviction against the revision petitioner. The conviction recorded by the courts below overlooking the above vital aspects cannot be sustained and is accordingly dislodged. Since the complainant has not established his case **Crl. R.P. No. 3796 of 2006** -:11:- beyond reasonable doubt, the revision petitioner is certainly entitled to the benefit of such doubt available to him in law. In the result this revision petition is allowed and the conviction entered and the sentence passed against the revision petitioner are set aside. Amounts, if any, deposited before the trail court shall be refunded to the revision petitioner. **V.Ramkumar, Judge.** ani. **Crl. R.P. No. 3796 of 2006** -:12:-