CRL.A. No. 1967 of 2005

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** ## **CRL.A.No.1967 OF 2005** **AGAINST THE ORDER/JUDGMENT IN CRMC 5463/2000 OF HIGH COURT OF KERALA AGAINST THE ORDER/JUDGMENT IN CC 643/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYANNUR** ## **APPELLANTS:** **1 T.K.KUNHIKANNAN NAIR (DIED) AGED 62 YEARS S/O.LATE KANNAN NAIR, SUPERVISOR, CONTRACT WORK, LAKSHMI NIVAS, KELOTH, PO PAYYANUR 670 307, KANNUR DISTRICT. 2 VISALAKSHI, AGED 66 YEARS W/O. LATE KUNHIKANNAN, RESIDING AT LAKSHMI NIVAS, KELOTH, PAYYANNUR, KANNUR, 3 T.K. VINOD KUMAR, AGED 44 YEARS S//O. LATE KUNHIKANNAN, RESIDING AT LAKSHMI NIVAS, KELOTH, PAYYANNUR, KANNUR, 4 T.K. PRAMOD KUMAR, AGED 42 YEARS S/O. LATE KUNHIKANNAN, RESIDING AT LAKSHMI NIVAS, KELOTH, PAYYANNUR, KANNUR, 5 T.K. SINDHUMOL, AGED 40 YEARS S/O. LATE KUNHIKANNAN, RESIDING AT LAKSHMI NIVAS, KELOTH, PAYYANNUR, KANNUR, 6 T.K.PRASAD KUMAR, AGED 36 YEARS S/O. LATE KUNHIKANNAN,** Crl.A. No. 1967 of 2005 2 ## **RESIDING AT LAKSHMI NIVAS, KELOTH, PAYYANNUR, KANNUR,** **APPELLANTS 2 TO 6 IMPLEADED AS PER ORDER DATED 0409-2013 IN CRL.M.A. 6009/13 .** **BY ADVS. SRI.M.V.AMARESAN SRI.ANOOP ELIAS** ## **RESPONDENTS:** **1 RAJESH K. AGED 28 YEARS S/O.RAGHAVAN NAIR, CONTRACTOR, KUDIYIL, KUNDAMTHADAM, P.O.CHERUPUZHA, KANNUR DISTRICT. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.M.M.ANTO R1 BY ADV. SRI.GEORGE MATHEWS R1 BY ADV. PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.K.B.UDAYAKUMAR, SR.GP, SRI.PRANOY.K.KOTTARAM FOR R1** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-092020, THE COURT ON 13-10-2020 DELIVERED THE FOLLOWING:** Crl.A. No. 1967 of 2005 3 ## **P.V.KUNHIKRISHNAN, J.** **=================== Crl.A. No. 1967 of 2005 =================== Dated this the 13[th] day of October, 2020** ## **J U D G M E N T** The appellant is the complainant in C.C No. 643 of 1998 on the file of Judicial First Class Magistrate Court, Payyannur. The above case is filed by the appellant against the 1[st] respondent herein for prosecuting him under Section 138 of the Negotiable Instruments Act. (Hereinafter parties are mentioned according to their rank before the lower court). 2. The case of the complainant is that, on 04.01.1998 the accused came to his house and requested to advance a loan amount to Rs. 1,50,000/-. The accused undertook to repay the said amount on or before 16.6.1998. The complainant asked the accused to come on 06.01.1998. Accordingly, on 06.01.1998 the Crl.A. No. 1967 of 2005 4 complainant advanced Rs. 1,50,000/- to the accused as a loan. To discharge that liability the accused issued a cheque dated 16.06.1998, for an amount of Rs. 1,50,000/- drawn on Cherupuzha bank of Padiyotchal Service Co-operative Bank. Since the accused has not repaid the amount within the stipulated time, the complainant had presented the cheque before the Kannur Co-operative Bank Ltd, Payyannur Branch on 16.06.1998. The cheque was returned for the reason that “funds insufficient”. A statutory notice was issued on 03.07.1998 though the accused received the notice, the accused refused to pay the amount. Hence, the complaint is filed. 3. To substantiate the case, the complainant himself was examined PW1. Exts. P1 to P5 are the exhibits marked on the side of the complainant. No witness were examined on the side of defence. No exhibits were also marked on the side of defence. 4. After going through the evidence and documents, the trial court found that the accused has not committed the offence under Section 138 of Negotiable Instruments Crl.A. No. 1967 of 2005 5 Act. Accordingly, the accused is acquitted under Section 255(1) Cr.P.C. Aggrieved by the above, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. Pending appeal the appellant/complainant died. Therefore, the legal heirs of the deceased complainant filed an application as Crl.M.A.No.6009/2013. This court allowed the same. 7. The learned counsel for the appellant submitted that, the trial court acquitted the accused mainly for the reason that, there is one sentence in the evidence of PW1 to the effect that, the cheque was issued as security. That is the main reason for acquitting the accused. The learned counsel relied the judgment of the Apex Court in **Bir Singh v. Mukesh Kumar (2019 (1) KHC 774)** and the judgement of this Court in **Mohanachandran Nair v.P.C.Cheriyan and Another (2012 (4) KHC 96)** . The learned counsel submitted that, in the light of these judgments of the Apex Court and this Court. The point on Crl.A. No. 1967 of 2005 6 which the trial court acquitted the accused is not sustainable. The learned counsel submitted that, here is a case where the execution of cheque is proved by the appellant/complainant. No evidence is adduced by the defence. In such circumstances, the learned counsel submitted that, the lower court erred the acquitting the accused. 8. The learned counsel for the 1[st] respondent/accused supported the judgment of the trial court. The learned counsel submitted that, the trial court perfectly justified in acquitting the accused. 9. The point for consideration in this appeal is whether the impugned judgment in this appeal is sustainable or not. 10. I care fully perused the oral and documentary evidence available in this case and the impugned judgment. The learned Judge acquitted the accused mainly for the reason that, in the cross examination, PW1 stated that, the cheque was issued as a security. In the Crl.A. No. 1967 of 2005 7 light of the judgment of this Court and the Apex Court the issuance of cheque as a security will not always can be a ground for acquitting the accused. This Court in **Mohanachandran’ case** (Supra) considered this point in detail. The relevant paragraph is extracted hereunder; “6. Even if it is assumed that Ext.P2 cheque was issued as a security, so long as there was no case for the first respondent that the liability to the security of which Ext.P2 was issued, was discharged, there is no legal bar in presenting the cheque for collection or launching the prosecution after complying the requisite procedures in the event of dishonour. The decision referred by the learned Magistrate was overruled by the Apex Court in the decision in ICDS Ltd v. Beena Shabeer. The Apex Court had held that the prosecution can be launched even if the cheque was issued to discharge the liability as a guarantor. In the above circumstance, I find that the Trial Court had gone wrong in finding against the appellant. The appellant had succeeded to establish the liability for issuance of the cheque, the dishonour of the same, notice demanding discharge and the failure of the first respondent to discharge. The appellant is entitled to succeed. The first respondent is liable to be convicted under Section 138 of the Negotiable Instruments Act.” 11. In **Bir Singh’s case (Supra)** the Apex Court also considered this point in detailed, the relevant Crl.A. No. 1967 of 2005 8 ## paragraph is extracted hereunder; “36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under S.139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of S.138 of the Negotiable Instruments Act. 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S.20, S.87 and S.139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent – accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent – accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Crl.A. No. 1967 of 2005 9 S.139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.” 12. In the light of the above judgments one of the ground mentioned by the trial court for acquitting the accused in this case is not sustainable. 13. I do not want to decide the matter afresh. Admittedly, the appellant is no more. The legal heirs are in the party array. The trial court acquitted, mainly for the reason that, the cheque is issued as a security. A consideration on merit afresh is necessary in the facts and circumstances of this case. The trial court also will give a reasonable time to the accused in this case to settle the matter if he intends to do so. If there is no chance for settlement, the trial court will consider the matter afresh in accordance to law. But I make it clear that, no denova Crl.A. No. 1967 of 2005 10 trial is necessary. But the complainant and the accused will be given an opportunity to adduce further evidence if any in accordance to law. Since I am remanding this matter to the lower court, I make it clear that, this is an open remand. Therefore, this criminal appeal is allowed with the following directions; 1. The judgment dated 02.08.2006 in C.C No. 643 of 1998 on the file of Judicial First Class Magistrate Court, Payyannur is set aside. 2. The case is remanded to the lower court for a afresh disposal in accordance to law. I make it clear that, no denova trial is necessary. 3. The lower court will give an opportunity to the complainant and the accused to adduce additional evidence if any and thereafter pass an appropriate order in accordance to law. 4. Since it is a case registered in the year 1998 the lower court will take every Crl.A. No. 1967 of 2005 11 endeavor to dispose the case at the earliest. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU