Criminal Appeal No. 1313 of 2019 against the judgment dated 30.09.2019 in S.T. No. 591/2017, Special Additional Chief Judicial Magistrate Court, Thrissur.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945`** ## **`CRL.A NO. 1313 OF 2019 AGAINST THE JUDGMENT DATED 30.09.2019 IN S.T.NO.591/2017 OF THE SPECIAL`** ## **`ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR`** ## **`APPELLANT/COMPLAINANT:`** - `*1 SANTHOSH(DIED) AGED 45 YEARS, S/O.PORINCHU, KURIYATTY HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR.` - `2 NISHA M.V., AGED 43 YEARS, W/O.LATE SANTHOSH, KURIYATTY HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR, NOW RESIDING AT MANJALLY HOUSE, KANMAMKULANGARA, THRISSUR-68007, WORKING AS A CLERK AT KOORKENCHERI HEALTH CENTRE, THRISSUR.` - `3 SAN K S(MINOR), AGED 16, S/O.LATE SANTHOSH, KURIYATTY HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR, NOW RESIDING AT MANJALLY HOUSE, KANMAMKULANGARA, THRISSUR-68007, REPRESENTED BY MOTHER AND GUARDIAN NISHA M V, W/O.LATE SANTHOSH, KURIYATTY HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR, NOW RESIDING AT MANJALLY HOUSE, KANMAMKULANGARA, THRISSUR-68007 (1ST PETITIONER) WORKING AS A CLERK AT KOORKENCHERI HEALTH CENTRE, THRISSUR.` - `4 SAM K S(MINOR), AGED 14, S/O.LATE SANTHOSH, KURIYATTY HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR, NOW RESIDING AT MANJALLY HOUSE, KANMAMKULANGARA, THRISSUR-68007, REPRESENTED BY MOTHER AND GUARDIN NISHA M V, W/O.LATE SANTHOSH, KURIYATTY HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR, NOW RESIDING AT MANJALLY HOUSE, KANMAMKULANGARA, THRISSUR-68007 (1ST PETITIONER), WORKING AS A CLERK AT KOORKENCHERI HEALTH CENTRE, THRISSUR` - `*(ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED AS PER ORDER DATED 01/11/2022)` ``` BY ADV C.CHANDRASEKHARAN ``` ## **`RESPONDENTS/STATE & ACCUSED:`** - `1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.` - `2 CHARLEY, AGED 61 YEARS, S/O.KUNJUVAREED, PANTHALLOOKARAN HOUSE, MAR OUDHEESHA CHURCH ROAD, KURIACHIRA, OLLUR (VIA), THRISSUR.` - `BY ADV SRI.D.ANIL KUMAR(R2)` ``` ADV.MAYA M.N., PUBLIC PROSECUTOR (R1) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2022, THE ``` ``` COURT ON 17.10.2023 DELIVERED THE FOLLOWING: ``` Crl.A. No.1313 of 2019 ## -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No. 1313 of 2019 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of October, 2023 ## **JUDGMENT** Judgment passed by Special Additional Chief Judicial Magistrate Court, Thrissur in ST No.591/2017 is under challenge in the appeal on hand. 2. It is the case of the appellant/complainant that the respondent/accused availed a loan of `4,00,000/from him and when the repayment of the amount was demanded, a cheque bearing No.183316 and dated 05.06.2015 drawn on HDFC Bank Ltd, M.C. Road, Thrissur Branch was brought to his house by the latter, signature was affixed in front of him and given. It was presented before State Bank of India, Kuriachira Branch for encashment but, returned for the reason that Crl.A. No.1313 of 2019 -:3:- ‘account was closed’. The Bank has issued a Memo intimating the factum of dishonour to him on 16.06.2015. 3. Notice was sent by the complainant to the accused on 22.06.2014 intimating the factum that the cheque given by him to discharge the monetary liability was returned bounced for the reason ‘account closed’ and demanding payment of the amount covered by the cheque and to avoid prosecution proceedings that is intended to be initiated on default, notice was issued. The accused received the notice on 27.06.2015, but failed to repay the amount. Therefore alleging cheating, complaint was filed and prosecution under Sections 138 read with Section 142 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’) was initiated. 4. In the notice allegedly sent also, the very same factual matters as averred in the complaint were found ## Crl.A. No.1313 of 2019 -:4:- conveyed to the accused. The precise averment with regard to the disputed cheque was that when return of `4,00,000/- borrowed by the accused was demanded, cheque dated 05.06.2015 bearing No.183316 was issued making him believe that money was there in his account and it would be encashed on presentation. But, against the assurance given, he was informed by the bank that the account wherefrom the cheque was drawn was closed. 5. In the prosecution on hand the complainant filed proof affidavit and was cross examined as PW1. In the proof affidavit also the very same averments as in the complaint were taken. The consistent stand taken during cross examination was that the disputed cheque was given to him by the accused at the relevant time when repayment of `4,00,000/- borrowed secondly was demanded. It was stated that `4,00,000/- borrowed Crl.A. No.1313 of 2019 -:5:- firstly was repaid by the accused in full. According to him, `2,00,000/- was also borrowed and the cheque issued by the accused to discharge that liability was encashed on its presentation itself. 6. The narration of the above factual matters were alleged by the respondent/accused as false and the outcome of an after thought for the reason that those were not described in the notice as well as the complaint filed consequently. Thus those were sought to be discarded as false. 7. The disputed cheque, memo issued by the payee bank, copy of lawyer notice, postal receipt, postal acknowledgment card and reply notice were also marked in evidence, respectively as Exts.P1 to P6 and relied on by the complainant with a view to establish the prosecution case and the statutory requirements needed to make it valid and legal. ## Crl.A. No.1313 of 2019 -:6:- 8. The reply notice dated 15.07.2015 admittedly sent by the accused to him was also marked in evidence as Ext.P6 and for the reason that it was sent on 27.06.2015, much later to the receipt of the notice, the defence taken in it was sought to be discarded. 9. The specific stand of the accused in Ext.P6 with regard to the disputed cheque was as follows : “The cheque mentioned in your notice is one which is handed over by my client, in the form of blank signed cheque as security. The handwriting in the cheque do not belong to client except my signature.” During cross examination an attempt was made by the accused to brought to light that the complainant had no source of money to advance `4,00,000/- to him. It was explained by PW1 that gold ornaments of his mother who was no more then, were sold and `4,00,000/- was advanced to the accused, out of the sale consideration received. ## Crl.A. No.1313 of 2019 -:7:- 10. The accused got himself examined as DW3, pursuant to an order obtained from the trial court in an application filed under Section 315 Cr.P.C. Two witnesses were also examined on his side as DW1 and DW2. 11. The specific defence taken by the accused in the prosecution on hand with regard to the disputed cheque (Ext.P1) was that it was one given as security when a sum of `4,00,000/- was borrowed from PW1 on 11.04.2012. According to him, `2,00,000/- was paid in cash firstly, `1,93,037/- secondly and cheque bearing No.84875 for `2,00,000/- thirdly and thus the liability to the complainant was discharged fully. According to him, for the reason that support was declined by the accused to the complainant in his venture to contest the election to the Service Co-operative Bank, Kuriachira, the prosecution in question was launched by the latter by misusing the cheque given as security while borrowing Crl.A. No.1313 of 2019 -:8:- `4,00,000/- from him. According to DW3, after repaying the entire loan arrears, demand was made for return of the security cheque, but the complainant took the stand that it was lost. 12. The complainant was cross examined with reference to the above stand taken by the accused in defence. The defence set up during cross examination of PW1 was that `4,00,000/- was borrowed from the complainant on 10.04.2012 agreeing to re-pay with interest at the rate of 15%. It was furthermore revealed from the evidence that `4,00,000/- was advanced by the complainant from the loan that has been availed from the Service Co-operative Bank, Kuriachira where the accused was the President then and the complainant, its member. According to him, the loan amount was remitted in instalments by way of 2 cheques and `5,93,034/- remitted in total is inclusive of Crl.A. No.1313 of 2019 -:9:- the interest. The accused denied to have any other monetary transaction with the complainant and raised a specific claim that Ext.P1 was the cheque given by him to the complainant as security while obtaining the loan amount. According to him, the complainant approached the accused to enroll him in the election to the Director Board of Service Co-operative Bank, Kuriachira and on denial of support, the prosecution in question was launched making use of the cheque alleged by him as lost, but actually retained. 13. It was brought to light during cross examination of PW1 that he had an outstanding liability of `10,00,000/- towards the loan he had availed from Service Co-Operative Bank, Kuriachira in 2012 and during subsistence of the above liability that the complainant advanced `4,00,000/- to the accused, by selling the gold ornaments belonging to his deceased ## Crl.A. No.1313 of 2019 -:10:- mother. The learned counsel urged to discredit PW1 for his version above especially when he has not spoken anything about their close association to advance such a huge amount to him by selling the gold ornaments of his deceased mother. According to him, a prudent man would only give preference to settle the liability outstanding for him rather than lending money to others, that too after accumulation of it in the manner spoken. 14. It was urged by the learned counsel for the accused that the complainant’s case is liable to be defeated when viewed in the backdrop of the oral evidence of DW1 to DW3 as well as the documentary evidence adduced by the accused and forming part of record as Exts.D1 to D4. According to him, the oral evidence tendered by PW1 with regard to his source to Crl.A. No.1313 of 2019 -:11:- advance the money to the accused is only liable to be discarded. 15. When as DW3, the accused had taken a specific stand that `4,00,000/- was once borrowed by him from the complainant and repaid, it is not proper for him to raise challenge against the transaction alleged by the complainant for reasons of want of source of money and deep acquaintance towards the accused to advance such a huge amount to him. It appears that the transaction in which `4,00,000/- was admitted by the accused as advanced to him was also at a point of time when the loan arrears was outstanding from the complainant to the bank. 16. The case of the complainant cannot also be thrown for the reason that complainant had availed interest free advances of `25,000/- from the Social Welfare Committee on 01.02.2015 and 03.04.2016 ## Crl.A. No.1313 of 2019 -:12:- towards education of his children as evidenced from Exts.D4 and D4(a). 17. It appears to this Court from the impugned judgment that the trial court has given undue importance to the evidence tendered by the accused to take a view that there was no financial source for the complainant to advance `4,00,000/- to the accused. Thus, it took a view that the complainant must have misused the cheque entrusted by the accused as security in 2012, when `4,00,000/- was availed by him as loan. 18. The trial court thus took the stand that the complainant failed to prove the transaction with DW3 and execution and issuance of a cheque for a legally enforceable debt. Accordingly, it found the accused not guilty of the offence under Section 138 N.I. Act and acquitted him under Section 255(1) Cr.P.C. Crl.A. No.1313 of 2019 -:13:- 19. The discussion on the evidence hereinabove made, constrains me to take a view contrary to the one taken by the trial court. The specific case of the accused was that a cheque for `2,00,000/- was given by him to discharge the balance sum outstanding towards the loan availed from the complainant. At the same time the accused had also taken a stand that a cheque given by him as security to the complainant while availing the said loan amount from him was returned. 20. According to him, the cheque given by him as security was a blank signed one. If that be so, the accused could have insisted for utilising that cheque for presentation and encashment of the balance amount alleged as due then, rather than issuing a fresh cheque for `2,00,000/- especially when his version was that cheque given as security was informed by the Crl.A. No.1313 of 2019 -:14:- complainant as lost only after discharge of the entire liability and on a demand for its return was made. 21. Complainant’s case is well proved by the oral as well as documentary evidence adduced by him. As PW1 he had spoken about all aspects of the transaction pleaded by him in the complaint. His source of money to advance `4,00,000/- and his inclination to advance the amount to the accused stood well established by the evidence adduced from his side. Presumption under Section 139 would undoubtedly be attracted in his favour. The accused in the view of this Court, did not succeed in discharging his onus to rebut the presumption either by bringing preponderance of probabilities in the evidence of PW1 or by adducing evidence independent evidence on his side. 22. Ext.P1 is admittedly a cheque drawn from the account of the accused maintained by him with HDFC Crl.A. No.1313 of 2019 -:15:- Bank Ltd., M.C. Road, Thrissur. There was no case for the accused that Ext.P1 was a cheque lost from his custody or stolen by someone from him. His admitted case was that Ext.P1 was a signed but otherwise unfilled cheque, voluntarily issued by him to the complainant while availing a loan of Rs.4,00,000/- from him on an earlier occasion. Therefore, as rightly held by the Apex Court in **Bir Singh v. Mukesh Kumar** [2019 (1) KHC 774 (SC)], a blank cheque when admitted as voluntarily signed and handed over by the accused towards some payment availed, undoubtedly the presumption under Section 139 N.I. Act would be attracted, in the absence of any cogent evidence from the accused to show that the cheque was not issued towards discharge of a debt. It has also been held in the case referred to above that filling up of the cheque issued as above by the payee Crl.A. No.1313 of 2019 -:16:- would not invalidate the cheque as it does not amount to alteration. 23. It is pertinent to note that the accused had taken inconsistent stand with regard to the manner in which Ext.P1 was issued. While issuing reply notice, his stand was that a blank cheque with the amount written was given as security while availing loan. During cross examination of PW1, as suggestion it was put to him that a blank signed cheque was given. While being examined as DW3, the stand taken was also that the cheque given was a signed but blank as far as its entries are concerned. Therefore, the accused himself seems to have no idea about the nature of Ext.P1 at the time when it was issued by him to the complainant. Moreover his specific stand that Ext.P1 was issued by him to the complainant as security while availing a loan of `4,00,000/- and was retained by the latter evenafter Crl.A. No.1313 of 2019 -:17:- the entire liability towards the loan has been discharged under the guise that it was lost from his custody and lateron the prosecution in question was launched misusing it, is not found reasonably proved from the evidence adduced by him and discussed above. It is undoubtedly established from the totality of the evidence that the case of the complainant is reasonably established and the case put forth by the accused is improbable and unbelievable. The presumption under Section 139 would undoubtedly be attracted in the above context to support the case of the complainant. The presumption being a rebuttable one, it is for the accused to create a circumstance to view the case of the complainant suspicious. The presumption under Section 139 N.I. Act could be rebutted by the accused by bringing some preponderance of probabilities in the case of the complainant or by letting in independent evidence ## Crl.A. No.1313 of 2019 -:18:- liable to controvert the case of the complainant. It is convinced from the evidence stood adduced by the accused in the case on hand that the accused failed to establish either of the ways open to it. Therefore, the presumption stood unrebutted. Consequently the appeal succeeds. In the result, the appeal is allowed. The judgment of Special Additional Chief Judicial Magistrate Court, Thrissur dated 30.09.2019 in S.T. No.591/2017 under challenge here is reversed. The finding of the trial court that the accused is not guilty of the offence under Section 138 N.I. Act and the order of acquittal passed consequently are reversed. The accused is found guilty of the offence alleged against him under Section 138 N.I. Act and convicted and sentenced to undergo simple imprisonment till rising of the court and to pay `4,00,000/- as fine. The fine amount is also ordered to Crl.A. No.1313 of 2019 -:19:- be defrayed as compensation to the complainant, on deposit of it is made. Sd/- **MARY JOSEPH, JUDGE.** ttb