Biju v. Ananda and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH SEPTEMBER, 2008 / 24TH BHADRA, 1930 **CRL.A.No. 107 of 2003** (CC.506/1996 of JUDL. MAGISTRATzE OF FIRST CLASS COURT-II, THODUPUZHA) .................... APPELLANT/COMPLAINANT: ---------------------------------- BIJU, S/O. EMMANUEL, AGED 33 YEARS, KOCHUPURACKAL HOUSE, NEDIYASALA KARA, PURAPPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.J.KURIACHAN SMT.P.P.STELLA RESPONDENTS/ACCUSED & STATE: -------------------------------------------- 1. ANANDA, AGED ABOUT 34 YEARS, S/O. CHENNOJEE RAO, ELIKKALA HOUSE, KUNDAR P.O., MULLERIA, KASARGODU DIST. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 SRI.K.A.LALAN FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.Appeal No. 107 of 2003 --------------------------------------------Dated this the 15[th] day of September, 2008** ## **J U D G M E N T** The complainant in C.C.No.506/1996 of the Judicial First Class Magistrate Court-II, Thodupuzha is the appellant herein who challenges the order of acquittal passed by the court below as per its judgment dated 27.3.2002. 2. C.C.No.506/1996 is instituted upon a private complaint filed by the appellant herein for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). The allegation in the complaint is that the accused issued a cheque for Rs.50,000/- dated 15.1.1996 drawn on Kadakam Service Co-operative Bank Ltd., towards the discharge of the debt in favour of the complainant and when the cheque was presented for encashment, the same was dishonoured for the reason that funds are insufficient. According to the complainant, dishonoured cheque was received on 3.7.1996. Thereafter, a lawyer notice dated 4.7.96 was sent to the accused which was received by him on 10.7.1996, but Crl.A.NO.107 of 2003 :-2-: reply was sent only on 22.8.1996. Since the amount was not paid in his request, a complaint was filed on 2.8.1996. 3. During the course of trial, the complainant was examined as PW-1 and Exts.P1 to P5 were marked. On the side of the defence, DW-1 was examined and Ext.D1 was marked. The stand taken by the defence regarding the transaction is a total denial. But, finally the court below found that the accused was guilty under Section 138 of the N.I.Act. Challenging the above conviction and sentence, the accused preferred Crl.Appeal No.6/1998 before the Additional Sessions Court, Thodupuzha. The lower Appellate Court, after hearing the parties, allowed the appeal and the case was remanded back to the lower court for fresh disposal with liberty to the parties to adduce evidence. Thus, on remand, on the side of the defence, DW-2 was examined and Ext.D2 document was marked. The specific plea raised by the defence is that Ext.P1 cheque was issued at the request of one Binoy who is the brother of the Crl.A.NO.107 of 2003 :-3-: complainant for producing the same before the Income Tax authorities in the departmental enquiry which was pending against him. During the trial, it is also brought to the notice of the court below that the father of the complainant had also filed a complaint against the accused under Section 138 of the N.I.Act before the Judicial First Class Magistrate Court-II, Hosdurg which had also ended in acquittal in favour of the accused. Thus, after the trial, in the present case also, the trial court came into a conclusion that the accused not guilty and accordingly, he was acquitted under Section 255(1) of the Code of Criminal Procedure. It is the above order of acquittal that is challenged in this appeal. 4. I have heard learned counsel for the appellant as well as counsel for the first respondent and also the Public Prosecutor for the second respondent. 5. The learned counsel, reiterating the averments and grounds taken in the appeal, submits that the trial court has committed wrong in admitting the evidence of DW-2, especially in view of the fact that Crl.A.NO.107 of 2003 :-4-: Ext.D2 was sent after more than one and a half months from the date of receipt of the lawyer notice which was caused to be sent by the complainant. It is also submitted that the complainant has not admitted the contents of Ext.D2 reply notice and the court had mistakenly held that the complainant had admitted the contents of Ext.D2 reply notice. The finding of the court below that the complaint was not filed in time is also not correct, according to the complainant. It is also the case of counsel for the complainant that there is no independent evidence to corroborate the version given by the accused that the cheque was issued to the brother of the complainant. 6. Per contra, Mr.Grashious Kuriakose , counsel appearing for the first respondent, on the strength of the decision of the Apex Court reported in **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008(1) KLT 425 (SC)], submits that existence of legally recoverable debt is not a matter of presumption under Section 139 of the N.I.Act. and Section 139 does not raise any Crl.A.NO.107 of 2003 :-5-: presumption in regard to existence of a debt also. Inviting my attention to para 26 of the above decision, the counsel submits that in a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. According to the counsel, the facts and circumstances involved in the case are required to be considered by finding out the correctness or otherwise of the allegation in the complaint as well as the case of the complainant. 7. I have carefully considered the rival contentions advanced by the counsel appearing for the appellant as well as the respondents. After the remand of the matter, DW-2 was examined and Ext.D2 was also marked. Based upon the rival contentions and the materials on record, the trial court formulated five issues. On the basis of the remand order of the lower Appellate court, the trial court was of opinion that in analysing the prosecution evidence, the only point to be Crl.A.NO.107 of 2003 :-6-: answered is whether Ext.P1 cheque was supported by consideration. After evaluating the evidence, the trial court found that there was some transaction between the accused and himself in connection with the enquiry of the income tax authorities against the father of PW-1. The trial court found in favour of the defence regarding the failure of PW-1 in denying the factual averments and assertions contained in Ext.D2 reply notice. The trial court also had taken into consideration the fact that another case filed by the complainant against the accused was dismissed by the J.F.C.M-II, Hosdurg and he was acquitted. On the basis of the above particular facts and circumstances involved in the case, the trial court, especially on the basis of evidence of DW-2 and on a close reading of Ext.D2, doubted the genuineness of the transaction alleged in the complaint. So, according to the trial court, the accused had succeeded in creating a genuine doubt with respect to the alleged transaction. Accordingly, the trial court found it difficult to believe the evidence of PW-1 and came to a conclusion that his Crl.A.NO.107 of 2003 :-7-: version with respect to the alleged transaction in the complaint could not be believed. The trial court had also found that the notice was sent within 15 days as fixed by the statute. Thus, on the basis of the above factual position, the trial court found that Ext.P1 cheque was fraudulently obtained by the brother of the complainant as it is evident from Ext.D2 and from the evidence of DW-2. Therefore, the trial court held that it could not be safely concluded that Ext.P1 cheque was supported by consideration and the accused had succeeded in rebutting the presumption in favour of the complainant under Section 118(a) of the N.I.Act and by giving the benefit of doubt in favour of the accused, it was found that the accused was not guilty under Section 138 of the N.I.Act. I have gone through the impugned judgment and also the materials available on record. In this juncture, it is pertinent to note that the lower Appellate Court, after the consideration of the entire facts and circumstances involved in the case and that too before the pronouncement of the judgment of the Apex Court Crl.A.NO.107 of 2003 :-8-: cited supra, remanded the matter for fresh consideration and allowed the parties to adduce additional evidence, if any. Thus, thereafter as per the revised judgment, the trial court found that the accused was not guilty and in the given facts and circumstances of the case, it was specifically held that the case of the complainant could not be believed at all. The Apex Court, in the decision cited supra, held that the proviso appended to S.139 provided for compliance to legal requirements before a complaint petition could be acted upon by a court of law. It was also held that Section 139 of the Act merely raised a presumption in regard to the second aspect of the matter and existence of legally recoverable debt was not a matter of presumption under Section 139 of the Act. It was also held that Section 139 merely raised a presumption in favour of a holder of the cheque that the same had been issued for discharge of any debt or other liability. In the very same decision, the Apex Court had further held that a statutory presumption had an evidentiary value and the question Crl.A.NO.107 of 2003 :-9-: as to whether the presumption whether stood rebutted or not, must, therefore be determined keeping in view the other evidences on record. The Apex Court had also held that in a case where the chances of false implication could not be ruled out, the background fact and the conduct of the parties together with their legal requirements were required to be taken into consideration. On examining the facts and circumstances involved in the present case and in the light of the above decision, it can be seen that the complainant culpably inculcated in controverting the assertion contained in Ext.D2 reply notice. The complainant was aware of the case put forward by the accused through Ext.D2 notice. The trial court had elaborately considered the stand taken by PW-1 when he was examined in the court. Thus the trial court had found that PW-1 had more or less admitted the contentions raised in Ext.D2. Against this, the contention of the appellant is that Ext.D2 reply notice is belated and therefore, the same cannot be looked into. Crl.A.NO.107 of 2003 :-10-: I am unable to accept the above contention. In the light of the above decision, when the transaction is denied, it is for the complainant to convince the court regarding the genuineness of the transaction, otherwise, no presumption under Section 139 is available to the complainant. The trial court had also found that though the complainant had received Exts.P2 and P3 memos dated 22.5.96, he had sent the lawyer notice on 4.7.1996. PW-1, the complainant, during his chief examination, admitted that he informed the accused regarding the dishonour of cheque on 3.6.1996, that means, the complainant had got knowledge regarding the dishonour of cheque much earlier. If that be so, the lawyer notice sent by him cannot be taken as within the statutory period. The above factual finding by the court below cannot be disturbed since no contra evidence is brought to the notice of this Court. In short, the appellant has miserably failed to make out a case warranting interference of this Court with the order of acquittal passed by the court below. Crl.A.NO.107 of 2003 :-11-: In the result, there is no merit in the appeal and the same deserves to be dismissed. Accordingly, the Crl.Appeal is dismissed. There is no order as to costs. **V.K.Mohanan, Judge** MBS/ Crl.A.NO.107 of 2003 :-12-: **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO. 107 OF 2003 -------------------------------------------- J U D G M E N T DATED: 15.09.2008 Crl.A.NO.107 of 2003 :-13-: