Ashraf O.C. v. Riyas Bavootty T. and State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT: ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 10[TH] DAY OF JANUARY 2017/20TH POUSHA, 1938 ``` ``` CRL.A. No. 1069 OF 2009 ( ) --------------------------- ``` ``` [AGAINST THE JUDGMENT IN ST 269/2008 OF J.M.F.C., KUNNAMANGALAM DATED 19-03-2009] ``` ``` APPELLANT(S)/COMPLAINANT: ``` ``` ------------------------- ``` ``` ASHRAF O.C.,S/O.MUHAMMED, AGED 39 YEARS OLAVANGAL HOUSE,KUNNAMANGALAM, KOZHIKODE DISTRICT. ``` ``` BY ADV SRI.SANTHARAM.P ``` ``` RESPONDENTS/ACCUSED & STATE(S): ``` ``` -------------------------------- ``` ``` 1.RIYAS BAVOOTTY T., S/O.BAVA KANHIRAMAKANDY HOUSE, PERINGALAM, P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT. 2.STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.REKHAC. NAIR. ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **Mary Joseph, J.** ------------------------------------------------Crl.A.No. 1069 of 2009 -----------------------------------------------Dated this the 10[th] day of January, 2017 ## **J U D G M E N T** This appeal is directed against the judgment dated 19.03.2007 of the Judicial First Class Magistrate Court, Kunnamangalam (for short 'the court below') in S.T.No.269/2008 in a prosecution launched under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'). Vide the judgment, the accused was found not guilty for the offence under Section 138 of the N.I.Act and was acquitted. The aggrieved complainant has approached this Court in this appeal. The parties to this appeal are referred to hereinafter as the complainant and the accused in accordance with their status before the court below. 2. The facts of the complaint in a nutshell are reproduced hereunder:- Towards the discharge of the liability arising out of Crl.A.No.1069 of 2009 :-2-: borrowal of a sum of Rs.1,50,000/- by the accused from the complainant, a cheque bearing No. 010279 dated 21.7.2007 drawn on ICICI Bank, Kunnamangalam Branch was issued by the accused. The cheque was presented for encashment, but was returned unpaid due to insufficiency of funds in the account maintained by the accused with the bank. The factum of dishonour of the cheque was intimated to the accused through lawyer notice. The amount was also demanded to be repaid. Neither the repayment was made nor a reply notice was sent by the accused. The said circumstances led to the launching of the prosecution under Section 138 of the N.I.Act. The accused appeared before the court below, on service of summons upon him. When particulars of the offence were read over and explained to him, he pleaded not guilty. On an appreciation of the entire evidence on record, the court below found the evidence as unsatisfactory and insufficient to enter into a finding of guilt of the accused and accordingly, Crl.A.No.1069 of 2009 :-3-: acquitted him under Section 255(1) Cr.P.C. 3. The aggrieved complainant has approached this Court in the captioned appeal. Sri.Santharam.P., the learned counsel represented the appellant/complainant in the appeal. The main argument advanced by the counsel was that the court below failed to appreciate the evidence in its true perspective and accordingly arrived at an erroneous finding of acquittal of the accused. According to the learned counsel, the reasoning of the court below is contained in paragraphs 10 and 11 of the impugned judgment and is appropriate to extract those hereunder:- “ _10. As per Sec.139 of the Negotiable Instruments Act, once the issuance of the cheque is admitted or proved, court has to presume that, it was in discharge of a debt or liability. Then the burden will be on the accused to rebut the presumption. But, inorder to draw the presumption, complainant has to prove the issuance of the cheque by the accused to him._ _11. Now we have to consider whether the complainant has proved the issuance of the cheque by the accused to him, so as to get the benefit of the presumption. But, on going through the evidence of PW1, it can be seen that his evidence is not at all reliable. His_ Crl.A.No.1069 of 2009 :-4-: _evidence regarding the transaction is contradictory. In the complaint, his case was that, accused borrowed the amount on 23.3.2007. In the sworn statement also, he deposed that, accused borrowed the amount on 20.3.2007. But, in the chief affidavit he has not mentioned the date. It is only stated that, accused borrowed Rs.1,50,000/-. Of course, complainant need not narrate all the details of the transaction. But on going through Ext.P3 notice issued to the accused, it can be seen that there the complainant was having a different case. In Ext.P3, his case was that, accused borrowed the money in the month of February,2007. It is pertinent to note that in Ext.P3, complainant has not mentioned the date, but only the month and year were mentioned. So, it can be seen that even regarding the date of transaction, the evidence of the complainant is contradictory. He is not having a consistent case regarding the transaction. .........”_ According to the learned counsel, the reasoning of the court below as disclosed from the aforesaid paragraph is perverse and without any legal backing. According to him, the non-mentioning of the date of the alleged transaction in the lawyer notice sent to the accused on 6.8.2007 and admitted as received by him is not fatal to the prosecution. According to him, in **Viswanathan** v. **Ramachandran Nair** [1996(2) KLT 449 = 1996 KHC 337], the Crl.A.No.1069 of 2009 :-5-: purpose behind serving a lawyer notice on the accused is dealt with in detail in paragraph 9 and the same is extracted hereinbelow:- “ _9. What is required under S.138(b) is a demand in writing by giving a notice to the drawer of the cheque of the amount covered by the cheque. In making such a demand, the number of the cheque is only incidental and probably that may clarify the matters further. It is enough that the notice mention the fact of issuance of a cheque, the presentation of the cheque for encashment, dishonour of the cheque and the demand for the money covered by the cheque. A reading of S.138(b) does not indicate that the number of the cheque is a must in the notice..........”_ In Viswanathan's case (supra), the point considered by the court was whether the propriety and legality of the notice would be affected by referring the number of the cheque incorrectly and the court after duly considering the materials in the case held in the negative in the following words:- _“Then the question may arise whether mention of a wrong number will alter the situation. Here, in the case at hand, it has come out in evidence that there was only one transaction of issuance of cheque_ Crl.A.No.1069 of 2009 :-6-: _between the parties, and a mistake in the number could not mislead the drawer of the cheque and so there was sufficient compliance with the terms of S.138(b) when Ext.P3 was issued. In that view of the matter, Ext.P3 was a proper and sufficient notice under S.138(b) and the belated issuance of the correction notice Ext.P5 does not matter at all and there is no bar of limitation. In the circumstances, the acquittal of the accused by the lower court cannot be sustained.”_ 4. The court's reasoning in Viswanathan's case (supra) was that when it is established from evidence that only a single transaction is existing among the parties, solely on the reason that the number of the cheque has been wrongly shown in the notice instead of the real number, there is no chance for the accused to be misled. Accordingly, Ext.P3 notice, which was under challenge in that case, was held to be proper and sufficient one. The court reversed the judgment of acquittal of the accused on the ground. 5. The court also found that in the event of the original notice turning to be a proper and sufficient notice under Section 138(b) the belated issuance of Ext.P5, the consequent notice has no Crl.A.No.1069 of 2009 :-7-: bearing in the matter when the limitation period is considered and accordingly, held that the acquittal of the accused by the court below is unsustainable. 6. The learned counsel has also drawn my attention to the ratio in **Shihabuddin Ahammed** v. **A.K.Krishnaraj and another** [2016(2) KHC 463] to rest his contention that mere nonmentioning of the number of the cheque or furnishing incorrect number in a notice would not be fatal and that by itself would not vitiate the trial in a prosecution under Section 138 of the N.I.Act. The reasoning is contained in paragraph 9 and is extracted hereinbelow:- “9. Before preferring a complaint, the payee or holder of the cheque has to make a demand by giving a notice in writing under S.138(b) of the N.I.Act. Ext.P4 series is the lawyer notice and postal receipt. It is true that in the issued notice, there is a difference in the number of the cheque. It is clear from Section 138(b) of the NI Act, no express or specific form of notice has been prescribed under the NI Act. Therefore, the accused cannot take a contention that the notice has Crl.A.No.1069 of 2009 :-8-: to be issued in a specific form and any error crept in mentioning the number invalidates a negotiable instrument. The learned Magistrate relied on the decision of this Court in Viswanathan v. Ramachandran Nair, 1996 KHC 337: 1996(2) KLT 449, in which it was held that there is no requirement under S.138 of the NI Act stating the number of the cheque in the notice. When there is a mistake in stating the number of the cheque, the notice was held to be not bad, since the drawer of the cheque could not be mislead. Delhi High Court in Santosh Arora v. Jai Narain Aggarwal & State, 2010 CriLJ(NOC) 449 (Del.) held that if the details given in the notice are sufficient to bring to the knowledge of the drawer that cheque issued by him has not been dishonoured, mere non-mentioning of the number of the cheque or giving incorrect number would not be fatal.” 7. The dictum supra reminds me that the N.I.Act while incorporating Section 138(b) in the N.I.Act, the legislature only intends that a demand of the money due under the cheque shall be made after intimating the accused about the bouncing of the cheque. The provision does not prescribe that a notice shall be sent in a particular form. What is required under Section 138(b) of the N.I.Act is to intimate the accused about the factum of dis- Crl.A.No.1069 of 2009 :-9-: honouring of the cheque presented for encashment for either of the reasons, 'insufficiency of funds' or 'exceeds arrangement' and also to demand the repayment of the amount. Or in other words the same is intended to provide the accused with yet another opportunity to rectify the mistake of non-payment of the sum due under the cheque, before venturing to launch the prosecution. 8. It is evolved from the dictums cited supra that nonreference of the number of the cheque either in the notice or a mistaken reference of the number therein would not vitiate the prosecution. The court observed that either the mistaken mentioning or the non-mentioning of the number would not mislead the accused, especially when the complainant's plea is that apart from the transaction in question, no other transaction is existing among himself and the accused. 9. In the backdrop of the decisions, this Court has to analyse and appreciate the evidence on record to see whether the Crl.A.No.1069 of 2009 :-10-: court below has erred in entering into a finding that the accused is not guilty of the offence on the sole reason that a consistent version has not been spoken by the complainant with regard to the date on which he transacted with the accused or else the date on which the amount of Rs.1,50,000/- was advanced to the accused. The court below observed from the complaint filed to launch the prosecution that the amount was borrowed by the accused on 22.3.2007. In the sworn statement, the date was noted as 20.3.2007. But, the proof affidavit filed in lieu of chief examination, the date was omitted to be noted. The court below observed in the said circumstances that the complainant need not narrate all details of the transaction. But, despite observing that, the court below found the version of the complainant as contradictory and inconsistent since the date of transaction was referred incorrectly in the lawyer notice sent to the accused as evidenced from Ext.P3, the copy of the notice marked in evidence. Crl.A.No.1069 of 2009 **==> picture [27 x 9] intentionally omitted <==** The court below observed that the month and year were dealt with therein as February 2007, whereas in the complaint and in the sworn statement the date was specifically mentioned as 20.3.2007 (wrongly quoted in the judgment as 23.3.2007). Thus, the court below found the version of the complainant with regard to the date of the transaction as inconsistent and therefore, incredible. When viewed in the backdrop of the dictum supra, the version of the complainant as PW1 that “§ÄßÈá ÎáXÉí ¾ÞÈᢠdÉÄßÏá¢ååcash_æa ²øß¿É޿ᢠ©IÞÏßGßÜï”, is relevant. The accused denied the issuance of cheque to the complainant in the transaction as spoken by the latter. But, a specific defence was taken that the cheque was the one given in signed blank form as security to one Mr.Anilkumar of Sulthan Batheri in connection with a transaction with him and the prosecution in question was the outcome of the misuse of that cheque by him in collusion with the Crl.A.No.1069 of 2009 **==> picture [27 x 9] intentionally omitted <==** complainant. Therefore, it is clear from the version of the accused that a single cheque was issued by him at the relevant time. The accused has no case that Ext.P1 cheque was not drawn from the account maintained by him with the bank. He has also no case that several cheques were drawn from his account with the bank and issued to different persons at the relevant time. 10. Ext.P1 is the cheque allegedly involved in the transaction, which, according to the complainant and the accused, was issued in the respective transactions as claimed by each of them. The accused has also no case that there were several transactions among himself and the complainant and several cheques have been issued to the latter towards discharge of various liabilities. Therefore, the accused cannot be heard to contend that the discrepancy with regard to the date of issuance of the cheque in Ext.P3 has misled him. Even if the date of transaction is spoken inconsistently, the purpose behind serving of notice is achieved, Crl.A.No.1069 of 2009 **==> picture [27 x 9] intentionally omitted <==** Ext.P1 being the only cheque issued by the accused at the relevant time. Therefore, the court below is highly unjustified in finding that the complainant is inconsistent in his case and accordingly, finding the accused not guilty of the offence under Section 138 of the N.I.Act and acquitting him. 11. Therefore, it is an admitted case of drawal of Ext.P1 cheque from the account maintained by the accused with ICICI Bank Ltd. Kunnamangalam Branch. The signature in Ext.P1 is admitted by the accused. Only the other entries were disowned by him. When the accused owns the cheque and admits his signature therein and could not controvert the version of the complainant so as to make it incredible, the presumption under Section 139 would automatically be operative in his case and that would be available till the reverse onus is discharged by the accused. 12. In the case on hand, it is true that a case has been set up by the defence. But, no evidence was let in to establish. He did Crl.A.No.1069 of 2009 **==> picture [27 x 9] intentionally omitted <==** not succeed in bringing forth preponderance of probabilities in the evidence by cross-examining PW1. Therefore, evidently, the presumption under Section 139 was not rebutted by the accused. In this Crl.Appeal, no challenge is also raised against the compliance of statutory formalities. The complainant by producing Ext.P2 memo has successfully established the factum of dishonour of Ext.P1 cheque on the reason of insufficiency of funds. Exts.P3 and P4 establish that statutory notice was sent to the accused. Exts.P5 and P6 establish service of the notice on the accused. 13. The court below, failed to appreciate the evidence on record in its proper perspective and arrived at an erroneous finding that the accused is not guilty of the offence under Section 138 of the N.I.Act and accordingly dismissed the complaint. Therefore, judgment under challenge suffers from illegality and is only liable to be reversed. Crl.A.No.1069 of 2009 :-15-: In the result, this appeal is allowed. The impugned judgment of conviction and sentence is set aside. The accused is convicted and sentenced to undergo imprisonment till rising of the court and to pay a compensation of Rs.2,00,000/-, double the amount as per Ext.P1 cheque to PW1 under Section 357(3) of Cr.P.C. and in default thereof to undergo simple imprisonment for three months. The accused is granted three months time to pay the amount. He is directed to make the payment within two months from the date of receipt of a copy of this judgment and surrender before the court below to serve the sentence as directed. Till then, the execution of the sentence is directed to be kept in abeyance. The Office is directed to communicate a copy of this judgment to the court concerned immediately. Sd/- **MARY JOSEPH** , JUDGE. MBS/ CONTINUED AT PAGE NO….16 Crl.A.No.1069 of 2009 :-16-: As per order dated 04/09/2023 in Crl.A. 1069/2017, the second and third sentences of the last paragraph of the judgment dated on 10/01/2017 in Crl.A. 1069/2009 “The impugned judgment of conviction and sentence is set aside.” and “ The accused is convicted and sentenced to undergo imprisonment till rising of the court and to pay a compensation of Rs.2,00,000/-, double the amount as per Ext.P1 cheque to PW1 under Section 357 (3) of Cr.P.C. and in default thereof to undergo simple imprisonment for three months.”, are modified and substituted as “The impugned judgment of acquittal is set aside.” and “ The accused is convicted and sentenced to undergo imprisonment till rising of the court and to pay a compensation of Rs.3,00,000/-, double the amount as per Ext.P1 cheque to PW1 under Section 357 (3) of Cr.P.C. and in default thereof to undergo simple imprisonment for three months.” respectively. Sd/DEPUTY REGISTRAR