Benny Thomas v. E.K. Jose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **CRL.A.No.1401 OF 2005** **AGAINST THE ORDER/JUDGMENT IN CC 88/2000 DATED 10-06-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VAIKOM** ## **APPELLANT/COMPLAINANT:** **BENNY THOMAS, KALAPPARAMBATTU HOUSE, VALACHIRA KARA, KADUTHURUTHY, VAIKOM.** ## **BY ADV. SRI.MATHEWS J.NEDUMPARA** ## **RESPONDENTS/ACCUSED:** **1 E.K.JOSE PROPRIETOR, EDAKKARAYIL STORES, KADATHURUTHY, RESIDING IN EDAKKARAYIL HOUSE,, VELLASSERIL MURIYIL, KADUTHURUTHY VAIKOM.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY ADV. M.P.MADHAVANKUTTY R1 BY ADV. SRI.M.P.MADHAVANKUTTY R2 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT MAYA M.N -PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-09-2020, THE COURT ON 24-09-2020 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No. 1401/2005 ## **JUDGMENT** ## **Dated this the 24[th] day of September 2020** The above appeal is filed against the judgment dated 10.6.2005 in C.C. No. 88/2000 on the file of the Judicial First Magistrate Court, Vaikom. The appellant is the complainant in this case. He filed the above case for prosecuting the first respondent herein. 2. When this Crl.Appeal came up for consideration on 7.7.2020, there was no representation for the appellant. Therefore, the case was adjourned. Subsequently, the case was posted on 22.9.2020. On that day also there was no representation. Therefore, the case again posted today. Today also, there is no representation for the appellant. This appeal is filed on 17.8.2005, This appeal is pending before this Court for the last fifteen years. A Criminal Appeal filed under Section 378(4) Cr.P.C cannot be dismissed for default. The counsel for the first respondent is present. Therefore, I decided to hear this appeal on merit. Crl.Appeal No.1401/2005 3 3. The appellant filed the case against the first respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. The case of the appellant is that on 17.5.1999, the accused approached the complainant and borrowed a sum of Rs.55,000/- with an undertaking to repay the same within six months. Towards the liability, the accused issued a cheque. When the cheque was presented, the same was returned with an endorsement 'insufficient funds'. When statutory notice was issued, the accused refused to pay the amount and hence the complaint is filed. 4. To substantiate the case, the complainant himself was examined as PW1. Two other witnesses were also examined on the side of the complainant as PW2 and PW3. Exts.P1 to P12 were the exhibits marked on the side of the complainant. The accused himself was examined as DW1. Exts.D1 to D4 are the exhibits marked on the side of the defence. On going through the evidence and documents, the trial court found that the accused is not guilty and he was acquitted under Section 255(1) Cr.P.C. Aggrieved by the above acquittal order, this Crl.Appeal is filed. 5. I perused the entire evidence adduced by complainant and accused along with the documents produced by the parties. The trial court after carefully perusing the oral and documentary evidence available in this case found that the case put forwarded by the defence is Crl.Appeal No.1401/2005 4 more probable than the case of the complainant. The trial court considered and discussed the oral and documentary evidence in paragraph 7 of the impugned judgment. Paragraph 7 of the impugned judgment is extracted hereunder. _“The issuance of the cheque by the accused to the complainant is admitted. When the issuance of the cheque is admitted the burden is on the accused to prove that the cheque was issued not for the discharge of any debt or liability as claimed by the complainant. The presumption u/s 118 and 139 of the N.I.Act are in favour of the complainant. The presumption u/s 118 is that the cheque was issued or drawn for consideration. Normally in the absence of compelling reason it has to be assumed that the cheque was not a blank cheque when it was handed over. When a person hands over a blank signed cheque, he is giving authority to the person to whom the cheque is handed over to fill up the relevant details. To rebut the presumptions available to the complainant u/s 118 as well as 139 of the N.I.Act, the accused has to adduce cogent and convincing evidence. In the case at hand, accused relied his own testimony and Exts.D1 to D4, and D2(a) to D2(f) to rebut the presumptions. According to accused, he had issued Ext.P1 cheque at the time when he borrowed some amount from the complainant by pledging his gold ornaments. Admittedly, Pw1 is a man engaged in the business of money lending. He lends money on the security of gold ornaments. He is running a finance institution in the name and style “Kalamburath Financiers' Kaduthuruthy. According to Pw1, on 17.5.99 the accused_ Crl.Appeal No.1401/2005 5 _approached him and borrowed an amount of Rs.55,000/- and to discharge this debt, Ext.P1 was issued. Accused contended that on 1.5.99 he approached the complainant's Bank for pledging gold ornaments and took an advance of Rs.11,000/from the complainant. On weighing gold ornaments it was found that the gold ornaments tendered by pledging was not sufficient to advance the amount of Rs.11,000/- claimed by the accused. At the instance of the complainant, as the accused was in need of the amount, he issued a blank signed cheque as security for the amount borrowed. Though there is admission regarding transaction certain extend, there is difference in the date of transaction and amount involved in this case. Pw1 is conducting his business by maintaining proper accounts. He testified before court that he had not entered this transaction in his account. The accused summoned the account books of the complainant to prove the money transaction between himself and the complainant. This account book of the complainant is marked as Ext.D2. On perusal of Ext.D2, it can be seen that on 1.5.99 the accused had pledged 4 bangles in the Financial institution of complainant and borrowed an amount of Rs.11,000/- from him. The entries made with respect to the pledging of the gold ornaments and the transaction is evident from Ext.D2(a) and D2(b). Complainant admitted this transaction in crossexamination. The amount covered by Exts.D2(a) and D2(b) were paid by the accused and gold ornaments were released to the accused on 8.10.99 and 10.7.99 respectively. Thereafter the accused had pledged and borrowed an amount of Rs.6,000/- from the complainant on 19.6.1999. The transaction with respect to this borrowing is marked as Ext.D2(c). This loan amount was also cleared on 10.7.1999._ Crl.Appeal No.1401/2005 6 _On 7.7.1999 accused had borrowed an amount of Rs.2,000/by pledging gold ornaments and the entry with respect to this transaction is marked as Ex.D2(d). Again on 10.7.1999 accused had pledged a gold chain and borrowed an amount of Rs.5,000/- from the complainant and this transaction is marked as Ext.D2(e). On 15.9.1999 the accused pledged another gold chain and borrowed an amount of Rs.6,000/-. This transaction is marked as Ext.D2(f). The transactions covered as per Exts.D2(d) to D2(f) were not cleared by the accused. As the accused did not clear the debt covered by Exts.D2(d) to D2(f), the complainant auctioned the gold ornaments and the amount due from the accused was realised by him. The transaction between the accused and the complainant from 1.5.99 to 15.9.99 is evident from Ext.D2. The alleged transaction involved in this case according to the complainant took place on 17.5.1999. Complainant would say that the amount involved in this case i.e. Rs.55,000/- was given to the accused from the Financing institution run by him. He had not made the relevant entry regarding this transaction in Ext.D2 (or any other accounts books maintained by him. When the complainant is maintaining the account regarding the transaction, the burden is on the complainant to produce and prove those transactions. When the complainant admits that he is lending money only on security of the gold ornaments, it is for the complainant to explain the circumstances under which he had lend Rs. 55,000/- on the strength of Ext.P1 cheque. The circumstances of the case will go to show that the case put forward by the accused is more probable than the case of the complainant. The decree of proof required to prove the transaction in 138 of N.I.Act has been discussed in the_ Crl.Appeal No.1401/2005 7 _decision reported in 2003(2) KLT 825 in Mohanan v. Bindhukumar by the Hon'ble High Court of Kerala. In the said decision, the Hon'ble High Court of Kerala held that burden to rebut presumption available to the complainant u/s 139 is not as onerous as the initial paramount burden on the complainant to prove his case beyond reasonable doubt. The accused is bound to discharge his burden at least by the yardstick of preponderance of possibilities and probabilities in a civil case. On measuring the evidence available in this case, with the yardstick laid down by the Hon'ble High Court of Kerala, it can be seen that the accused had succeeded in rebutting the presumptions available to the complainant. Considering the preponderance of possibilities and probabilities of the case at hand, the case put forward by the accused seems to be more probable and genuine than the evidence of the complainant. The complainant has not succeeded to prove that Ext.P1 was issued for the discharge of a legally enforceable debt owed by the accused to the complainant and point no.(1) is found against the complainant. ”_ 6. I see no reason to interfere with the above well considered judgment. The trial court considered all aspects of the case and found that the case put forwarded by the accused is more probable than the case put forwarded by the complainant. Moreover, this appeal is filed against the acquittal order. Jurisdiction of this Court to interfere against an acquittal order is very limited. Considering the entire facts and circumstances of this case, I think there is nothing to interfere with the impugned judgment. Crl.Appeal No.1401/2005 8 Hence, this Crl.Appeal is dismissed confirming the judgment dated 10.6.2005 in C.C.No.88/2000 on the file of the Judicial First Class Magistrate Court, Vaikom. Sd/- **P.V.KUNHIKRISHNAN JUDGE** al/-