Binoy K. Kochunny v. Rameshkumar V.K. and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2012-02-14
Court Decision / Holding: Appeal dismissed; acquittal upheld.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Binoy K. Kochunny

Respondents

Rameshkumar V.K.
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Rajit

Counsels for Respondents

• Public Prosecutor SMT. T.Y. Laliza

Case Synopsis & Summary

This is a criminal appeal filed by the complainant against an order of acquittal recorded by the Judicial First Class Magistrate (JFCM) Kunnamkulam in CC 493/1999 under Section 138 of the Negotiable Instruments Act, 1881. The complainant contends that the accused borrowed Rs. 1,60,000 and issued Ext. P1, a cheque, which was dishonoured on presentation, with the statutory notice (Exts. P3–P5) and dishonour memo (Ext. P2) proving the sequence. The trial court acquitted under Section 255(1) CrPC, finding the prosecution failed to prove the cheque’s execution, and the accused denied the transaction, claiming his son had used a blank cheque as security in a kuri transaction with Cash Credit Corporation. On appeal, the High Court notes that the only reliable proof is the complainant’s evidence (PW1) and Exts. P1–P7, but the trial court correctly held that the signature on Ext. P1, though admitted, does not automatically establish execution or liability since the other entries on the cheque were written in different ink without plausible explanation. The court reiterates the settled principle that mere signature admission does not prove a debt or its due execution; the burden remains on the complainant to establish a legally recoverable debt and due execution, not merely reliance on signature. Citing Krishna Janardhan Bhat v. Dattatraya Hegde (SC), the court emphasizes that existence of debt is not presumed (burden to prove may be rebutted by facts and circumstances). Applying these principles, the court finds the trial court’s reasons justified, dismisses the appeal, and upholds the acquittal.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 255(1) of the Code of Criminal ProcedureSection 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Mere admission of signature on the cheque is not sufficient to attract liability under section 138 NI Act.
Existence of a legally recoverable debt is not a matter of presumption under Section 139 NI Act (burden on complainant to prove debt and due execution).
Burden of the accused to rebut the presumption can be discharged by facts and circumstances of the case.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the accused borrowed Rs.1,60,000 and issued Ext. P1 cheque for discharge of the liability; the cheque was dishonoured; the statutory notice was served; the signature on Ext. P1 was admitted; the appellant argues that the admitted signature should establish execution and liability under section 138 NI Act, relying on authorities cited in the memorandum of appeal; however, the appellant acknowledges that mere signature may not prove due execution and seeks reversal of acquittal in light of Exts. P1–P7 and the DOJ.

Contentions of Respondents

The respondent-accused denies the transaction, contending that his son joined a kuri and issued a blank cheque as security; the cheque’s other entries were in different ink, with no adequate explanation; the defence argues that there is no proof of due execution and that the lower court’s acquittal should stand since the prosecution failed to establish a legally enforceable debt and proper issuance of Ext. P1.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishna Janardhan Bhat v. Dattatraya Hegde	2008(1) KLT 425 (SC)	Positive	Cited to support the proposition that existence of a legally recoverable debt is not presumed under Sec 139 NI Act; burden to prove debt/due execution lies on the complainant, and mere signature does not prove execution.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 14TH DAY OF FEBRUARY, 2012/25TH MAGHA, 1933 CRL.A.No. 1805 of 2007 ---------------------[AGAINST THE ORDER dtd.4.7.2001 in CC.493/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KUNNAMKULAM] APPELLANT(S)/PETITIONER/PETITIONER: ---------------------------------- BINOY K.KOCHUNNY, S/O.KOCHUNNY,KOLLANNUR HOUSE, KANIPPAYYUR P.O. KUNNAMKULAM. BY ADV. SRI.RAJIT RESPONDENTS(S)/RESPONDENTS/ACCUSED: ----------------------------------- 1. RAMESHKUMAR.V.K., S/O.KUMARAN,VADAKKATH HOUSE, KIZHOOR P.O. KUNNAMKULAM. 2. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 1805 of 2007** **----------------------------------------** Dated this the 14[th] day of February, 2012 ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Code of Criminal Procedure. 2. The case of the complainant is that the accused borrowed a sum of Rs.1,60,000/- and towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured and the cheque amount was not paid in spite of the statutory notice served on the accused. Therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act'). During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P7 documents. Crl.A.No.1805 of 2007 :-2-: 3. The specific defence taken by the accused is that the son of the accused viz.,Sabareesh had joined a kuri conducted by Cash Credit Corporation and when the kuri was auctioned, he issued a blank cheque as security. PW1 is the partner of the Cash Credit Corporation where the son of the accused joined as one of the subscribers and thus, the accused denied the entire transaction claimed by the complainant and also denied the execution and issuance of cheque. 4. The trial court, on the basis of the available evidence, has found that the complainant has miserably failed to prove the execution of cheque, whereas the case of the accused is held as more probable and accordingly, the accused is acquitted under Section 255(1) of the CrP.C. Int he light of the arguments advanced by the counsel for the appellant and in the light of the materials and evidence referred to by the learned Magistrate, the only question to be considered is whether the appellant has succeeded in making out a prima facie case to interfere with the order of acquittal recorded by the trial court. The Crl.A.No.1805 of 2007 :-3-: only evidence available on record is that of the interested version of the complainant/PW1 and Exts.P1 to P7 documents. Ext.P1 is the cheque in question and Ext.P2 is the dishonour memo. Exts.P3 to P5 are the documents connected with the service of statutory notice on the accused. Exts.P6 and P7 are photostat copies of extracts and intimation slip. The trial court has found that though the complainant put up a case to the effect that the accused borrowed Rs.1,60,000/and issued Ext.P1 cheque, towards the discharge of the said liability, the said transaction is not proved. It is also found by the learned Magistrate that except the signature in Ext.P1, all other entries in the cheque were made by using different ink. Learned counsel for the appellant submitted that as the accused has admitted the signature, the findings of the court below are incorrect and illegal. In support of the above contention, the counsel placed reliance upon the decision of the Apex Court, which is claimed to have reported in 2002(1) KLT 13, but there is no decision in page No.13 of the above citation which is given in the appeal memorandum. The learned counsel also miserably Crl.A.No.1805 of 2007 :-4-: failed to substantiate that the decision relied on by the learned counsel is attracted in the present case. According to me, to find out the correctness of the finding of the court below, no authority is required in the light of the facts and circumstances and the evidence involved in this case. Now, it is a settled position that mere admission of signature on the cheque in question is not sufficient to attract the penal liability under section 138 of the N.I.Act. It is incumbent upon the complainant or the holder of the cheque or the payee to prove that cheque in question is issued by the accused after its due execution. In the absence of any positive evidence regarding the transaction and also execution and issuance of cheque, it appears that the case of the accused as rightly held by the learned Magistrate is more probable. The complainant, who is examined as PW1, has admitted that he is one of the partners of the kuri company of which the son of the accused is a subscriber. Ext.D1 will prove the above fact. More over, the learned Magistrate had categorically found that except the signature, all other entries in Ext.P1 cheque were in different ink. Crl.A.No.1805 of 2007 :-5-: There is no explanation from the part of the complainant for the above discrepancy. If the cheque was executed and issued by the accused as claimed by the complainant, there is no possibility for using different ink. Thus, it can be concluded that the findings arrived on by the court below are fully justified in the light of the facts and circumstances involved in the case and especially in the light of the evidence on record and therefore, the findings of the court below and the order of acquittal recorded by the trial court will be justified in the light of the decision of the Supreme Court reported in in **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008(1) KLT 425 (SC)] wherein it was held that existence of a legally recoverable debt is not a matter of presumption under Section 139 of the N.I.Act and it does not raise a presumption in regard to the existence of a debt also. It is also held in the above decision that the burden of the accused to rebut the presumption can be discharged by relying on the facts and circumstances involved in the case. Crl.A.No.1805 of 2007 :-6-: That being the position, I find no merit in this appeal and accordingly, the same is dismissed. **V.K.MOHANAN,Judge.** MBS/ Crl.A.No.1805 of 2007 :-7-: **V.K.MOHANAN, J** . CRL.A.No.1805 OF 2007 **JUDGMENT** Dated:14.02.2012 Crl.A.No.1805 of 2007 :-8-: