C.A. MUHAMMED v. FATHIMA ALI and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929** **CRL.A.No.1588 of 2004 (C) ------------------------------AGAINST THE ORDER IN CRL.L.P.384/2004 Dated 02/08/2004 ST.2641/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, OTTAPALAM** **....................** ## **APPELLANT: COMPLAINANT:** **---------------------------------** **C.A. MUHAMMED, S/O. CHARAPARAMBIL AHAMMADUNNI, KOTHACHIRA AMSOM DESOM, OTTAPALAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER HIS FATHER, C.V. AHAMMADUNNI, S/O. VEERAN KUTTY, CHARAPARAMBIL VEEDU, PERINGOD, OTTAPALAM TALUK.** **BY ADV. SRI.SANTHEEP ANKARATH** **RESPONDENTS: ACCUSED AND STATE:** **---------------------------------------------** **1. FATHIMA ALI. K.T., W/O. ALI, AND D/O. ITHRIRUMMA, KALATHIL VEEDU, POOVATHANI POST, ALIPARAMBA (VIA), PERINTHALMANNA.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SMT.M.R.MINI SMT.MEENA.A. SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008, ALONG WITH CRL.APPEAL NO.1617/04, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## K.P.BALACHANDRAN, J. -----------------------------------------------Crl. Appeal Nos.1588 & 1617 of 2004 -----------------------------------------------Dated this the 14[th] day of February, 2008 ## **JUDGMENT** In both these appeals, the parties are the same. Criminal Appeal No.1588/04 arises out of S.T.2641/98 and Criminal Appeal No.1617/04 arises out of S.T.2640/98 both on the file of the Judicial First Class Magistrate's Court, Ottapalam. The complainant before the Judicial First Class Magistrate's Court in both the cases have preferred these appeals assailing the acquittal of the first respondent of the offence punishable under Section 138 of the N.I. Act under Section 255 (1) of the Cr.P.C. 2. The appellant filed complaints in the court below complaining of commission by the first respondent of an offence punishable under Section 138 of the N.I. Act inter alia on the following allegations:- Crl. Appeal Nos.1588 & 1617 of 2004 -2- 3. The appellant and the first respondent are known to each other since they have worked together at Quatar. First respondent borrowed an amount of Rs.2,25,000/- from the appellant in December, 1995 at Quatar and on demand for repayment of the amount, the first respondent issued three cheques dated respectively 03/02/98, 01/03/98 and 03/03/98 each for Rs.75,000/-. The first one is cheque drawn on an account maintained by her at the State Bank of India, Ottapalam and the second and third ones mentioned above are drawn on account maintained by her at the South Indian Bank, Ottapalam branch. The cheques on presentation for encashment through the bankers of the appellant were returned dishonoured for reason of “insufficiency of funds” in the account of the first respondent. Consequently, registered notices were issued through lawyer intimating the first respondent of the dishonour of the cheques and demanding payment of the amounts Crl. Appeal Nos.1588 & 1617 of 2004 -3- covered by those cheques but the first respondent has not paid up the amounts covered by the cheques either within the statutory period or ever thereafter and has thereby committed an offence punishable under Section 138 of the N.I. Act. 4. S.T.2641/98 is in relation to cheque dt.01/03/98 and S.T.2640/98 is in relation to cheque dt.03/03/98 both drawn on the account of the first respondent at the Ottapalam branch of the South Indian Bank. In both the cases on appearance of the first respondent, the learned Magistrate furnished copies of all relevant records to her; read over the particulars of the offence and explained it to her and questioned her. Thereupon, she pleaded not guilty and consequently, a trial of the case was conducted in both the cases. 5. In S.T.2641/98, the appellant got himself examined as PW1 and got marked Exts.P1 to P7. On the appellant/complainant closing Crl. Appeal Nos.1588 & 1617 of 2004 -4- his evidence, the first respondent was questioned by the court below under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against her and maintained that she is innocent. She also filed a written statement of defence wherein her case is that she has not borrowed any amount from the appellant and had not written or signed and delivered any cheque to the appellant and no amount is due from her to the appellant; that in 1992 when she went over to Quatar she got acquainted with the appellant and had entrusted her cheque books etc. with the appellant for safe custody as she was working as a servant maid in the house of an “Arabi” that she left Quatar on 08/11/92 and arrived at Bombay on 10/06/93 and thereafter, she went to Quatar again only on 14/11/96 and till then she was at her native place and she was not at all available at Quatar during December, 1995 Crl. Appeal Nos.1588 & 1617 of 2004 -5- when the appellant says that money was advanced to her; that after her leaving Quatar the appellant was arrested in connection with an Abkari offence at Quatar and he was behind the bars and the appellant being under a misconception that the first respondent was responsible for disclosing details and that is how he was arrested, he has misused the cheque leaves from the cheque books entrusted with him to wreak vengeance against her and presented the cheques in bank falsely filling up those cheques with name, amount and date and forging her signature. 6. On the defence side DW1 is examined and Exts.D1 to D3 were marked. Nature of evidence adduced in both the cases is the same. The court below considered the case in the light of the evidence adduced as aforesaid; held that the case of the appellant that such a huge amount as Rs.2,25,000/- was advanced by him to a servant maid is Crl. Appeal Nos.1588 & 1617 of 2004 -6- unbelievable and that he has miserably failed to prove the case of his having advanced Rs.2,25,000/- to the first respondent and that in discharge of the said liability the first respondent has issued cheques for Rs.75,000/each which are involved in these two appeals. 7. It is submitted however, that there is no appeal against acquittal of the first respondent in the case filed consequent on dishonour of cheque for Rs.75,000/- dt.03/02/98 drawn on the account of the first respondent at the Ottapalam branch of the State Bank of India. 8. It is worthy to note that this is not a case wherein the respondent is served with any notice consequent on dishonour of the cheques involved in both these cases and consequently, no reply also is there from the first respondent. ## 9. It is also worthy to note that the definite case of the appellant is that he Crl. Appeal Nos.1588 & 1617 of 2004 -7- advanced as high an amount as Rs.2,25,000/- to the first respondent for the purpose of construction of a house for her. The first respondent is a servant maid at the house of an “Arabi”. The appellant himself is one who was engaged in the Gulf as a Tailor. There is absolutely no evidence on the side of the appellant to show as to how he was having so much affluence to advance so high an amount as Rs.2,25,000/- to the first respondent without any record whatsoever. His case is that the first respondent and himself were acquaintants and only on demand for repayment of the amount the first respondent has issued three cheques each for Rs.75,000/- drawn on accounts maintained by her in two banks at Ottapalam, which is her native place. The appellant and the first respondent even on the case set up by both of them were maintaining very good relationship. If that be so, the contention of the first respondent that she had entrusted Crl. Appeal Nos.1588 & 1617 of 2004 -8- her cheque books with the appellant to be kept in safe custody also can be considered probable. The first respondent has however, denied of having executed the cheques involved in both these cases in favour of the appellant. She has categorically deposed that she has not written anything in the cheques or signed in those cheques and that all those were being done by the appellant himself misusing three cheque leaves from out of the cheque books entrusted with him for safe custody. In view of the contentions so set up by the first respondent, the burden was heavy on the appellant to establish by cogent evidence the execution of the originals of Ext.P1 cheque in both the cases as being by the appellant. But the appellant has not taken any steps to have the handwriting or signature in the original of Ext.P1 cheques in both these cases to be examined by a handwriting expert and opinion obtained. Consequently, Crl. Appeal Nos.1588 & 1617 of 2004 -9- therefore, as regards execution of the original of Ext.P1 cheque in both these cases there is only the solitary interested testimony of the appellant as PW1. Further, there is no proof of the appellant having advanced a huge amount of Rs.2,25,000/- to the first respondent apart from his interested testimony. The Apex Court has in _Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC)_ held that the presumption under Section 139 of the N.I. Act in favour of the holder of the cheque is only that the cheque has been issued for discharge of any debt or other liability and that it does not give rise to a presumption that there existed a debt and that existence of legally recoverable debt is not a matter of presumption under Section 139 of the N.I. Act. Hence, with absolutely no evidence on the side of the appellant to prove the existence of debt independently of production of the cheque, he cannot hope to obtain a conviction Crl. Appeal Nos.1588 & 1617 of 2004 -10- of the first respondent for offence under Section 138 of the N.I. Act consequent on dishonour of the cheque allegedly issued by her. There is also no evidence that the notices issued consequent on dishonour of the cheques were actually served on the first respondent at least to contend that no reply had been issued by the first respondent when notice of demand was served on her. The result is that the finding entered into by the court below against the appellant has to be confirmed and the acquittal of the first respondent concurred with. There is no merit at all in these appeals. **==> picture [325 x 11] intentionally omitted <==** appeals confirming the correctness of the order of acquittal assailed in both these appeals. K.P.BALACHANDRAN, JUDGE kns/-