Baby s/o Mathew v. T.K. Baiju and The State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 CRL.A.No. 188 of 2008 ------------------------------------ STC.2154/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... ## APPELLANT/COMPLAINANT: BABY, S/O. MATHEW, VADAKKEL HOUSE, VEMOM POST, MANTHAVADY. BY ADV. SRI.J.OM PRAKASH ## RESPONDENTS/ACCUSED AND THE STATE: 1. T.K. BAIJU, S/O. KARUNAN, THEKKUMTHOTTIYIL HOUSE, VALAD POST,MANANTHAVADY. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K.P. Balachandran, J. --------------------------Crl.A.No. 188 of 2008 --------------------------- ## **JUDGMENT** This is appeal filed with leave by the complainant in S.T.Case No.2154/05 on the file of the Judicial First Class Magistrate's Court-II, Mananthavady, assailing the correctness of acquittal of the first respondent under Section 255 (1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. The appellant filed the complaint in the court below alleging that the first respondent borrowed an amount of Rs.65,000/- from him on 25.1.2004 on condition that the amount will be paid back within an year; that after the said period and on repeated demand made by him, the first respondent issued Exhibit P1 cheque for Rs.65,000/drawn on his account maintained at the Mananthavady Co-operative Urban Society Ltd. on 20.6.2005, but it was returned dishonoured under Exhibit P2 memorandum dated 23.6.2005 assigning the reason CRA 188/08 2 “insufficient funds”; that thereupon, original of Exhibit P3 notice was caused to be issued to the first respondent through Lawyer informing him of the fact of dishonour of Exhibit P1 cheque and demanding payment of the amounts covered by the said cheque; that the said notice was received by the first respondent under Exhibit P4 postal acknowledgment card on 27.7.2005 and that the first respondent has neither issued any reply to the said notice nor has he paid up the amounts covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On appearance of the first respondent in the court below, he was served with copies of all relevant records in the case and he was questioned by the learned Magistrate, reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and CRA 188/08 3 consequently, a trial of the case was conducted by the court below. On the side of the complainant, PW1 was examined and Exhibits P1 to P4 were got marked. On the complainant closing his evidence, the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, there was an agreement entered into between PW1 and himself for doing cable work; that thereunder an amount of Rs.61,150/- was to be paid to the appellant by him and towards that amount, a signed blank cheque was given to the appellant; that all amounts due thereunder had been paid to the appellant, but, he has not returned the cheque and he has now misused the said cheque for filing such a false complaint. 4. The court below considered the case in the light of the evidence so adduced; found that the first respondent is not guilty of the offence CRA 188/08 4 punishable under Section 138 of the Negotiable Instruments Act and consequently, acquitted him under Section 255 (1) Cr.P.C. of offence under Section 138 of the Negotiable Instruments Act. Hence this appeal by the aggrieved appellant. 5. The first respondent, though served, has not entered appearance. Heard submissions of counsel for the appellant and the learned Public Prosecutor for the second respondent State. 6. The acquittal of the first respondent of offence under Section 138 of the Negotiable Instruments Act is assailed vehemently by the counsel for the appellant. It is contended by the counsel for the appellant that the court below was taking a wrong approach in the matter of consideration of the case on merits; that there is formal proof regarding execution of cheque given by PW1 and that there is presumption also available in favour of the appellant under Section 139 of the Negotiable Instruments Act that Exhibit P1 cheque CRA 188/08 5 is issued in discharge of the debt due to him, he being the holder of Exhibit P1 cheque and that therefore, the first respondent should have been found guilty and convicted for offence under Section 138 of the Negotiable Instruments Act. 7. PW1 has sworn in the proof affidavit that on 25.1.2004, the first respondent approached him and asked for a loan of Rs.65,000/- on condition that the amount will be returned within an year and accordingly, Rs.65,000/- was advanced to him, but the first respondent did not return that amount, despite expiry of one year and on repeated demands for return of the amount, the first respondent issued Exhibit P1 cheque drawn on his account maintained at the Mananthavady Co-operative Urban Society Ltd. and that is Exhibit P1 and that has been dishonoured by the drawee bank under Exhibit P2 memorandum, assigning the reason that there is no sufficient funds in the account of the first respondent to honour the said cheque. In cross- CRA 188/08 6 examination, PW1 has admitted that himself and the first respondent executed the cable work jointly; that in connection therewith, they were having money transactions and that the amount of Rs.65,000/- was being received by the first respondent in several instalments and was not being received in lump. This is contrary to his statement in the proof affidavit and in the complaint. When asked as to whether an agreement had been executed between himself and the first respondent on 24.7.2002, he stated initially that he does not remember. Later, he admitted that under such an agreement, an amount of Rs.61,150/- was due to him and from out of that, an amount of Rs.30,000/- was agreed to be paid on 28.7.2002 and the balance on 8.9.2002, but that, those were not paid and in connection with that, a cheque also had been issued by the first respondent. He further admitted that the first respondent had issued him cheque only once, though he has denied the suggestion that the CRA 188/08 7 cheque issued at that time was being misused for the purpose of filing the present complaint. 8. It is worthy to note that the defence suggestion that an agreement had been entered into between the appellant and the first respondent for execution of cable work and that they were executing the cable work together are matters admitted by the appellant as PW1, though he says that he does not remember as to whether an agreement had been executed or not. Appellant also states that an amount of Rs.61,150/- was due to him in connection with the work executed by him jointly with the first respondent and that it was understood that the first respondent would repay Rs.30,000/- on 28.7.2002 and the balance on 8.9.2002. But, he has not repaid that amount. He also admits that in connection with that transaction, a cheque had been issued. But, all the same, he has asserted that the first respondent has issued cheque only once. If at all a cheque had CRA 188/08 8 been issued in connection with earlier transaction between the appellant and the first respondent and there was no second cheque issued by the first respondent to the appellant, one fails to understand how Exhibit P1 is the cheque issued by the first respondent in discharge of the alleged debt of Rs.65,000/-, that being the loan availed of by the first respondent from the appellant on 25.1.2004, as deposed to by him. Further, the specific case of the appellant is that Rs.65,000/was advanced in lump, but, in cross-examination, he has stated that the said amount of Rs.65,000/- was advanced in instalments. There is no evidence regarding advancing of the amount in instalments to the first respondent by the appellant. There is also no evidence as to what happened to the cheque issued in connection with the dealing between the appellant and the first respondent that took place in 2002, especially when it is the case of the appellant that the amount in relation to which CRA 188/08 9 cheque was issued in 2002 had not been paid up. 9. According to the first respondent, what he owed to the first respondent is only Rs.61,150/- in relation to an earlier transaction between himself and the appellant in 2002 and that has been discharged also by him and a signed blank cheque issued by him, in connection therewith, had not been returned and that is now being misused by the appellant to bring into existence Exhibit P1 and to file the present complaint. The contention of the first respondent, in the circumstances, stands highly probabilised in view of the admission by the appellant as aforesaid and in the absence of any evidence as regards advancing of amount by the appellant to the first respondent as alleged in the complaint and there is no proof also of the cheque received by him in 2002 having been returned to the first respondent and the appellant himself swears also that the said debt incurred in 2002, viz., an amount of Rs.61,150/-, had not been discharged by CRA 188/08 10 the first respondent. 10. It is worthy to note that the Apex Court has held in **Krishna Janardhan Bhat v. Dattatraya** **G.Hegde** (2008 (1) KHC 410) that the presumption available under Section 139 of the Negotiable Instruments Act is not available as regards existence of debt or a legally enforceable debt, but that the presumption available is only that the cheque has been issued in discharge of any debt or other liability. In the instant case, the circumstance stated for issuance of cheque in 2002 is admitted by the appellant. According to the appellant, there is no second cheque issued to him and the cheque issued to him in 2002 is also not returned to the first respondent. That means, the appellant was retaining possession of the cheque issued in the earlier transaction in 2002 and the said cheque was being misused to bring into existence Exhibit P1 and to file the present complaint, as contended by the first respondent. I CRA 188/08 11 hold, therefore, concurring with the finding of the court below, that the appellant has miserably failed to prove that Exhibit P1 cheque was issued by the first respondent to him in discharge of a legally enforceable debt or other liability, as alleged. The appeal, in the circumstances, deserves only to be dismissed confirming the correctness of the order of acquittal passed by the learned Magistrate. In the result, concurring with the order of acquittal of the first respondent passed by the court below vide judgment impugned, I dismiss this criminal appeal. 12[th] March, 2008 (K.P.Balachandran, Judge) tkv