B. Manomohan v. Raveendran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934** ## **CRL.A.No. 1061 of 2003 ( )** ## **-------------------------AGAINST THE JUDGMENT IN ST.45/1997 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES)** ## **APPELLANT/COMPLAINANT:** **------------** ## **B. MANOMOHAN, POUNAMI, OPP.N.S.S.KARAYOGAM, JAGATHY, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.G.PRIYADARSAN THAMPI** ## **RESPONDENTS/ACCUSED & STATE:** - **----------------------** **1. RAVEENDRAN, S/O.VELUPILLAI, TRAFFIC OFFICER, AIR LANKA LTD. INTERNATIONAL AIR PORT, THIRUVANANTHAPURAM RESIDING AT ASHIYANA, USRA -I-12A, TC 509-(2), UDARASIROMANI ROAD, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM.** ## **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR.** **BY ADV. SRI.D.KISHORE BY ADV. PUBLIC PROSECUTOR, SMT.LOWSY.A.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-052012, ALONG WITH CRL.A.No.1069/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.S.GOPINATHAN, J. -----------------------------Crl.A. Nos. 1061 & 1069 OF 2003 -------------------------------Dated this the 23[rd] day of May, 2012** ## **C O M M O N J U D G M E N T ~~~~~~~** The common complaint in S.T.Nos. 44 of 1997 and 45 of 1997 on the file of the Judicial Magistrate of the First Class-V (Special Court for Mark List Cases), Thiruvananthapuram is the common appellant. The appellant prosecuted the common 1[st] respondent before the trial court alleging offence under Section 138 of the Negotiable Instruments Act. In both cases it was pleaded that the 1[st] respondent owed rupees two lakhs, for the discharge of which two cheques each for rupees one lakh were issued and that when presented for collection the cheques were returned dishonoured for insufficient funds and despite the notice, the liability was not discharged. 2. Both the cases were initially tried separately. After closing the evidence, it was noticed that the cheques produced were mutually changed. Thereupon, the appellant filed petition for returning the documents. The learned Magistrate dismissed the petition, but ordered joint trial. Against that order, the Crl.A.Nos.1061 & 1069/2003 2 1[st] respondent preferred Crl.R.P.No.61/2000 before the Sessions Judge, Thiruvananthapuram. It was made over to the Additional Sessions Judge. By order dated 12.12.2002, the revision petition was allowed and the order permitting joint trial was set aside. But the appellant was given an opportunity to file a petition for denova joint trial. Accordingly, a petition for joint trial was filed and the cases were denova tried. Evidence was recorded in S.T.No.44/1997. The appellant was examined as PW1. Exts.P1 to P13 were marked. After closing the evidence for the prosecution, the 1[st] respondent was questioned under Section 313 of the Code of Criminal Procedure. He denied the transaction and further advanced a case that the appellant wanted to release goods at the airport without charging duty for which the 1[st] respondent was not agreeable. Due to that enmity, the appellant forcibly took his cheques and misusing the cheques the cases were filed. The 1[st] respondent entered the witness box and was examined as DW1. The learned Magistrate on appraisal of the evidence arrived at a finding that the evidence of the appellant is not believable as he had not given any explanation for obtaining four separate cheques. Consequently, the 1[st] respondent was acquitted under Section 255(1) of the Code of Crl.A.Nos.1061 & 1069/2003 3 Criminal Procedure in both cases. Assailing the above judgment of acquittal, these appeals are preferred. 3. I have heard Adv.Sri.G.Priyadarsan Thampi, the learned counsel appearing for the appellant and Adv.Sri.D.Kishore and Smt.Mini Gopinath, the learned counsel appearing for the 1[st] respondent. Perused the evidence on record and the judgment impugned. 4. Exts.P1 to P4 are the cheques. The signature therein is not disputed. But the case of the 1[st] respondent is that the 1[st] respondent is a Traffic Officer in Air Lanka Ltd. and that the appellant was a frequent flyer and thus they were on close terms. Sometime in 1994, the Directorate of Revenue Intelligence seized certain goods brought by the the appellant. The appellant requested the help of the 1[st] respondent for releasing the same. But he didn't render any help. Because of that enmity, the appellant was taken from his house with the cheque book and 12 cheques were got forcibly signed by the appellant. From the evidence it is revealed that after receipt of the summons, the 1[st] respondent caused Ext.P12 reply. There Crl.A.Nos.1061 & 1069/2003 4 also the 1[st] respondent had reiterated the story of forcibly getting 12 cheque leaves signed. In Ext.P12 it is stated that the 1[st] respondent was forcibly taken by the goondas of the appellant to a place behind the hotel Pankaj and threatened him to sign six blank papers and 12 cheque leaves. In the box the case is that the 1[st] respondent was taken to a lodge behind the Statue by the appellant and three other persons and forcibly got the cheques signed. It is further revealed that the 1[st] respondent is the sonin-law of the then Law Secretary. But he had not cared to file any complaint against the appellant for getting the cheque leaves and promissory notes signed under threat. Though there is mention in the evidence of DW1 that three other persons were present along with the appellant, there is no case that those three persons were goondas or that they threatened the 1[st] respondent to sign the cheques or promissory notes. In Ext.P12, it is mentioned that on getting notice demanding discharge of the liability the 1[st] respondent approached the lawyer, whose father-in-law and the 1[st] respondent are close friends, and appraised the true facts. The lawyer made him believe that no case would be filed. On receipt of the summons, he came to know that he was cheated by the lawyer. At the time of Crl.A.Nos.1061 & 1069/2003 5 argument it is submitted the word 'you' and 'your' used in Ext.P12 notices is referring to the appellant. Whatever be that, the 1[st] respondent has not cared to adduce any evidence in support of his plea that Exts.P1 to P4 were some of the cheque leaves got signed by force or by threat. In the light of the above evidence of DW1, going through the evidence of PW1, I find no good reason to disbelieve PW1. The trial court disbelieved PW1 for the reason that he had not given any explanation for taking four separate cheque leaves for rupees one lakh each for the total amount of rupees four lakhs. Going through the evidence of PW1, I find that there was no any such challenge in cross examination. PW1 was not asked as to for what reason four separate cheques were obtained. In the above circumstance, I find that the reasons stated by the trial court to disbelieve PW1 is the one which the 1[st] respondent had not advanced during the course of the trial. 5. The learned counsel for the 1[st] respondent relying upon the decisions reported in Bhaskaran Nair v. Mohanan [2009 (2) KLT 897], Gemini v. Chandran [2007(2) KLT 439] and Gopan v. Tonny Varghese [2008(1) KLT 31] would submit that Crl.A.Nos.1061 & 1069/2003 6 mere issuance of cheque would not amount to execution of the cheque and therefore, the prosecution is not sustainable against the 1[st] respondent because there is no proof regarding the execution of the cheques. On the other hand, the learned counsel appearing for the appellant would rely upon the decisions reported in Rangappa v. Mohanan [2010(2)KLT 682] and Devan v. Krishna Menon [2010(2) KLT 397] in support of his argument that once the signature, execution and handing over of the cheque is satisfactorily proved, the presumption under Section 139 would come into operation and until the accused discharges the burden atleast by preponderance of possibilities, it is to be concluded that the cheque was drawn for valuable consideration and issued in discharge of a debt. 6. On a careful reading of the pleadings and the evidence on record in the light of the precedents cited from either side, I find that the pleadings in both the cases and the evidence adduced by the appellant can be taken that the 1[st] respondent executed the cheque and delivered to the 1[st] respondent in discharge of the liability. Of course, it is not in specific terms stated that the 1[st] respondent signed the cheques Crl.A.Nos.1061 & 1069/2003 7 but that omission is not very significant because of the evidence of DW1 that the cheques were signed by him though under threat or force exercised by the appellant. Once the accused advances a plea that the cheques were signed under threat or force, it is his burden to prove the same. Other than the evidence of the 1[st] respondent as DW1 there is no supporting evidence. 1[st] respondent had not made any complaint regarding any threat or force to sign the cheques. Carefully going through the evidence of DW1, I find inconsistencies in the reply as well as in the evidence of the 1[st] respondent regarding the place where the cheques were got signed and the manner in which the cheques were got signed. The reason for threatening and getting the cheques signed is the omission of the 1[st] respondent to release certain goods seized by the Directorate of Revenue Intelligence attached to Airport. There is nothing on record to show that the 1[st] respondent, who was a Traffic Officer in Air Lanka Ltd., had anything to do with the Directorate of Revenue Intelligence so as to persuade the appellant to approach the 1[st] respondent to render help in releasing the articles. If the statement given by the 1[st] respondent under Section 313 is read Crl.A.Nos.1061 & 1069/2003 8 there is no case that the 1[st] respondent was taken to any place outside the house but it was simply stated that the cheques were forcibly taken. There is also no material on record to come to a conclusion that any force was exercised by the appellant to persuade the 1[st] respondent to go out of his house along with the cheque leaves. The evidence is to the effect that as asked by the appellant the 1[st] respondent went along with the appellant with the cheque leaves in a car brought by the appellant. Why the 1[st] respondent went along with the appellant with the cheque leaves is also not explained. There is nothing stated that there was any threat at the house of the 1[st] respondent to take the cheque leaves and then go along with the appellant in a car to whatever place stated by the appellant. In the above circumstance, I disbelieve the story of the threat and getting the cheques signed by force. Therefore, I am persuaded by the evidences of PW1 to believe him to arrive at a conclusion that the appellant had succeeded to establish the existence of the liability and the issuance of Exts.P1 to P4. The evidence of DW1 is not at all sufficient enough to rebut the presumptions under Sections 118 and 139 of the Negotiable Instruments Act that the cheques Crl.A.Nos.1061 & 1069/2003 9 were drawn for valuable consideration and issued in discharge of the liability. Exts.P5 to P8 would show that the cheques, when presented for collection, were returned dishonoured for insufficient funds. There is no defence of any discharge of liability. Therefore, I find that offence under Section 138 of the Negotiable Instruments Act is established in both cases. The trial court acquitted the 1[st] respondent on unsustainable reasons. The appellant is entitled to succeed in the appeal. 7. In the result, both the appeals are allowed by reversing the judgment of acquittal. The 1[st] respondent would stand convicted for offence under Section 138 of the Negotiable Instruments Act. Taking into account that the appellant and 1[st] respondent were close friends and that ordinary money transactions had led the 1[st] respondent, who is a responsible officer in Air Lanka Ltd., to face the prosecution, I find that the 1[st] respondent is entitled to leniency in sentence and that a sentence of imprisonment till the rising of the court with a fine of Rs.2,10,000/- (Rupees Two lakhs and ten thousand only) in each case would meet the ends of justice. Crl.A.Nos.1061 & 1069/2003 10 8. In the result, both the appeals are allowed. The 1[st] respondent would stand convicted for offence under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment till the rising of the court and a fine of Rs.2,10,000/- (Rupees Two lakhs and ten thousand only) in each case. In default of payment of fine, the 1[st] respondent shall undergo simple imprisonment for a further period of six months in each case. Out of the fine amount, if collected, Rs.2,00,000/(Rupees Two lakhs only) each shall be paid to the appellant as compensation. The 1[st] respondent is given four months time to remit the fine. Till then, the bail bond executed by the 1[st] respondent shall remain in force. ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/24/5**