A.K. Sidique S/o Late P.Ahammad v. Sagina P.K and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **CRL.A.No.1261 OF 2007** **AGAINST THE ORDER OF ACQUITAL IN ST 4005/2004 DATED 30-09-2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY** ## **APPELLANT/COMPLAINANT:** **A.K. SIDIQUE S/O. LATE P.AHAMMAD, MANORAMA, P.O. PARAL, VIA. THALASSERY.** ## **BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENT/S:** **1 SAGINA P.K D/O. SUKUMARAN, YESODALAYAM, P.O. PARAL. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SMT.CELINE JOSEPH R1 BY ADV. SRI.GEORGE MATHEWS PP. SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2019, THE COURT ON 16-08-2019 PASSED THE FOLLOWING:** Crl.A.No.1261/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1261 of 2007 ---------------------------------------------Dated this the 16[th] day of August, 2019 ## **J U D G M E N T** The appellant is the complainant. The appeal is filed by him challenging the acquittal of the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant, as stated in the complaint, is as follows: The accused owed a sum of Rs.1,50,000/- to him. Towards the discharge of that debt, the accused issued a cheque dated 20.04.2004 for Rs.1,50,000/- to him. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient funds in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The notice was returned unserved. The accused did not pay the amount of the cheque. - 3.The accused pleaded not guilty. Thereupon, the Crl.A.No.1261/2007 3 complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 and DW2 were examined on the side of the accused and Exts.D1 to D4 documents were marked on her side. 4. After appreciating the evidence adduced in the case, the trial court found that the cheque was not issued by the accused in discharge of a legally enforceable debt and found the accused not guilty of the offence and acquitted her. 5. Heard learned counsel for the appellant/complainant and also the first respondent/accused and perused the records. 6. Ext.P1 is the cheque dated 20.04.2004 for Rs.1,50,000/alleged to have been executed and delivered by the accused to the complainant. Ext.P2 memorandum dated 05.05.2004 issued from the bank shows that the cheque was returned unpaid for the reason that there was no sufficient amount in the account of the accused. Ext.P3 is the intimation given to the complainant from his bank regarding the dishonour of the cheque. It is dated 18.05.2004. Ext.P4 is the copy of the lawyer notice sent by the complainant to the accused. It is dated 05.06.2004. Ext.P6 is the cover which contains the notice which was returned unserved. Crl.A.No.1261/2007 4 7. When examined as PW1, the complainant stated in examination-in-chief (proof affidavit) that the accused had borrowed Rs.1,50,000/- from him on 15.02.2004. He has stated that, when he demanded repayment of the amount, the accused gave him Ext.P1 cheque dated 20.04.2004 for Rs.1,50,000/-, which contained her signature. 8. The plea of the accused, as revealed from the cross examination of PW1 and also the statement filed by her after her examination under Section 313 Cr.P.C, is as follows: There was no financial transaction between her and the complainant. She had not borrowed any amount from the complainant on 15.02.2004 or at any time. She had not issued any cheque to the complainant in discharge of such liability. In the year 2002, 10 cents of property was sold by her mother to the father of the complainant. The aforesaid property had been mortgaged to the bank. Her mother told the father of the complainant that the property could be sold only after discharging the liability towards the bank. Then, the father of the complainant agreed to remit the amount in the bank but he wanted a signed blank cheque. The mother of the accused, without the knowledge of the accused, Crl.A.No.1261/2007 5 took a blank cheque of the accused and gave it to the father of the complainant. On the date of registration of the document, the mother of the accused had borrowed a further amount of Rs.25,000/- from the father of the complainant. Then, the father of the complainant had told that the cheque would be returned when the aforesaid amount was repaid. The mother of the accused could not repay the amount. The father of the complainant died and the cheque was in his possession. Thereafter, the complainant approached the mother of the accused and threatened her that if she did not pay Rs.1,50,000/-, the cheque would be presented in the bank after writing amount in it. When the mother of the accused expressed her inability to pay such amount, the complainant wanted her to execute a sale deed in favour of his mother and siblings in respect of the joint property owned by the accused and her mother and sister. The mother of the accused agreed to do so as she had no other option. When her mother told her about it, the accused did not agree to do so. The complainant had told that the property shall be reconveyed and the cheque shall be returned on payment of the amount. The mother executed a sale Crl.A.No.1261/2007 6 deed as stated above. But, the accused did not go to the Sub Registrar's Office. She did not sign the sale deed. Thereafter, the complainant was on inimical terms with her. He has misused the cheque given by the mother of the accused and filed the complaint. 9. The mother of the accused was examined as DW1. She has given evidence almost in tune with the plea of the accused. She would say that she had given the cheque to the father of the complainant without the knowledge of the accused. She would even say that the aforesaid cheque did not bear the signature of the accused. 10. This is a case in which neither the complainant nor the accused has disclosed the real truth before the court. No prudent person would have accepted an unsigned blank cheque leaf as security from another person. The plea of the accused that, her mother had given an unsigned blank cheque belonging to her to the father of the complainant and that he readily accepted it as security for the amount paid by him for discharging the liability towards the bank, cannot be swallowed as such by the court. The complainant has stated in examination-in-chief that the Crl.A.No.1261/2007 7 accused gave him Ext.P1 cheque bearing her signature. Not even a suggestion was made to PW1 in the cross examination that Ext.P1 cheque does not bear the signature of the accused. In these circumstances, there can be no doubt with regard to the fact that Ext.P1 cheque was executed by the accused. 11. The mere fact that Ext.P1 cheque was executed by the accused does not mean that it was issued or delivered by her to the complainant. But, the complainant is in possession of the cheque and the presumption under Section 139 of the Act is in his favour. The burden is upon the accused to rebut the presumption. The accused has the burden to explain under what circumstances the cheque, which bears her signature and which was issued to her from her bank to operate her account, reached the hands of the complainant. 12. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with the evidence on the fact presumed. When that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options to Crl.A.No.1261/2007 8 rebut the presumption under Section 139 of the Act. He can either show that the debt or liability did not exist or that under the particular circumstances of the case the non-existence of debt or liability is so probable that a prudent man ought to suppose that no consideration and debt existed. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. But, the court shall not insist in every case that the accused should disprove the non-existence of consideration or debt by leading direct evidence. The reason is that it is difficult to prove a negative fact by direct evidence. At the same time, bare denial of the existence of debt or liability, would not serve any useful purpose. The accused has to bring on record something which is probable. The accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the debt or liability did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. The accused may rely upon circumstantial evidence to rebut the presumption under Section Crl.A.No.1261/2007 9 139 of the Act. If the circumstances so relied upon by the accused are compelling, the burden would shift again on to the complainant. The accused may also rely upon presumptions of fact, as those mentioned in Section 114 of the Evidence Act, to rebut the presumption under Section 139 of the Act. The accused has also an option to prove the non- existence of debt or liability by relying upon the case set out by the complainant, that is, the averments in the complaint, the recitals in the statutory notice and evidence adduced by the complainant during the trial (See **M/s. Kumar Exports v. M/s. Sharma Carpets : AIR 2009 SC 1518** ). 13. In the instant case, the accused has succeeded in discharging her burden to rebut the presumption under Section 139 of the Act by leading evidence and also by relying upon the improbabilities in the case set up by the complainant. 14. The evidence of DW1 proves that she had sold 10 cents of property to the father of the complainant in the year 2002 and at the time of the sale, there was liability towards the bank which was a charge on that property. PW1 has admitted on cross examination that his father had purchased 10 cents of property Crl.A.No.1261/2007 10 from the mother of the accused. DW1 has given evidence regarding the sale of 10 cents of property by her to the father of the complainant and the payment of the amount due to the bank by the father of the complainant. There is no cross examination of DW1 on these aspects. The complainant has no case that the amount paid by his father to discharge the liability towards the bank was adjusted in the sale consideration. In such circumstances, the evidence of DW1 that she had given Ext.P1 cheque to the father of the complainant as security for the amount due to him, is reliable and trustworthy. Only that part of the evidence of DW1 that it was an unsigned blank cheque which cannot be believed. The facts and circumstances indicate the probability that the accused had signed the cheque and it was given by her mother to the father of the complainant. 15. The evidence of DW1 would also prove that another item of property, which jointly belonged to her and her daughters, was sold in favour of the complainant and his mother and his siblings. Ext.D4 is the original of this sale deed. It was produced by the complainant at the instance of the accused. But, PW1 had pretended ignorance of the purchase of this property. Crl.A.No.1261/2007 11 He admitted that he was residing with his mother. But, he would say that the property was purchased by his mother without his knowledge. Ext.D4 sale deed shows that the accused has not signed that document. But, PW1 would say that he had not even enquired with his mother why the accused had not signed it, though that document purports to convey the share of the accused also in the property. 16. Ext.D4 sale deed was registered on 26.12.2003. According to PW1, it was on 15.02.2004 that the accused borrowed the amount from him. As rightly pointed out by the trial court, when the accused was not willing to be a party to the sale of property made in favour of the complainant and his mother and siblings, it is highly improbable that he would lend Rs.1,50,000/- to the accused, that too, without obtaining any document from her as security. The complainant has no case that Ext.P1 cheque was issued by the accused as security for the amount borrowed by her. It is highly improbable that, at a time when the complainant was not on cordial terms with the accused, he would lend such substantial amount to her without obtaining any security. 12 Crl.A.No.1261/2007 17. At this juncture, it is significant that there is no averment in the complaint that the accused had borrowed Rs.1,50,000/- from the complainant on 15.02.2004 or on any other date. The averment in the complaint is only that the accused owed Rs.1,50,000/- to the complainant. In the particular circumstances of the present case, absence of averment in the complaint on that aspect, is fatal to the case of the complainant. 18. True, there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability (See **M.M.T.C Limited v. Medchil Chemicals and Pharma (P) Limited : AIR 2002 SC 182** ). In view of the presumption envisaged under Section 139 of the Act, absence of averment in the complaint regarding any subsisting liability, will not affect the maintainability of the complaint. But, it may help the accused to prove that the plea raised by him is probable and that the case set up by the complainant in evidence is highly improbable [See **Vijay v. Laxman: (2013) 3 SCC 86** and **Divakaran v. State of Kerala :2016 (4) KHC 901: 2016 (4) KLT 233** ]. 19. The accused has also raised a plea that the complainant Crl.A.No.1261/2007 13 had no financial capacity to lend an amount of Rs.1,50,000/-. A specific suggestion to that effect was made to PW1 in the cross examination. PW1 would say that he was conducting the business which his father was earlier conducting. He has not stated what is the nature of the business conducted by him. He has not disclosed the income from the business allegedly conducted by him. No material was produced by the complainant to show that he had financial capacity in the year 2004 to lend such amount. It is to be noted that the amount allegedly borrowed by the accused cannot be considered as very small during that period. When the accused raises a probable defence and challenges the financial capacity of the complainant to lend the amount, it is incumbent on the complainant to explain his financial capacity (See **Basalingappa v. Mudibasappa : AIR 2019 SC 1983** ). 20. Thus, the accused had discharged the onus of proving that Ext.P1 cheque was not received from her by the complainant in discharge of a debt or liability. Under the circumstances, the onus or burden had shifted on the complainant. The complainant did not produce any material to prove that he had, in fact, given Rs.1,50,000/- to the accused as a loan. Having regard to the Crl.A.No.1261/2007 14 materials on record, this Court is of the opinion that the complainant had failed to establish his case. The appeal is liable to be dismissed. Consequently, the appeal is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/14/08/2019 True Copy PS to Judge