CRL.A.553/2004 & CRL.A.566/2004 (Vijaya Ravindran v. K.B. Kannan and The State of Kerala; Vijaya Ravindran v. Sumangala Balan and The State of Kerala)

Crl.A.553/2004 & Crl.A.566/2004 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29th KARTHIKA, 1942** **CRL.A.No.553 OF 2004** **AGAINST THE ORDER/JUDGMENT IN CC 56/2001 DATED 15-02-2003 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** ## **APPELLANT/COMPLAINANT:** **VIJAYA RAVINDRAN, W/O LATE RAVINDRA SHENOY, THAMMANATHU PARAMBIL HOUSE, THAMMANAM,, VENNALA P.O., PALARIVATTOM.** **BY ADVS. SRI.C.A.JOY SMT.T.R.RUJITHA** ## **RESPONDENT/ACCUSED AND STATE:** **1 K.B.KANNAN,S/O.K.K.BALAN KELAMANGALATH HOUSE, OPP. T.J.K. ENTERPRISES,, S.R.M.ROAD, KOCHI-18 2 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31** **R1 BY ADV. K.S.SAJEEV KUMAR R2 BY PUBLIC PROSECUTOR SMT.K.B.SONY** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-112020, ALONG WITH CRL.A.566/2004, THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:** Crl.A.553/2004 & Crl.A.566/2004 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29th KARTHIKA, 1942** ## **CRL.A.No.566 OF 2004** **AGAINST THE ORDER/JUDGMENT IN CC 559/1998 DATED 15-02-2003 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** ## **APPELLANT/COMPLAINANT:** **VIJAYA RAVINDRAN W/O LATE RAVINDRA SHENOY, THAMMANATHU PARAMBIL HOUSE, THAMMANAM,, VENNALA P.O., PALARIVATTOM.** **BY ADVS. SRI.C.A.JOY SMT.T.R.RUJITHA** ## **RESPONDENT/ACCUSED AND STATE:** **1 SUMANGALA BALAN, W/O.K.K.BALAN KELAMANGALATH HOUSE, OPP.TJK ENTERPRISES,, S.R.M.ROAD, KOCHI - 18. 2 THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, KOCHI - 31. R1 BY ADV. SRI.P.SAM ZACHARIAH R1 BY ADV. SRI.K.S.SAJEEV KUMAR R1 BY ADV. SMT.LEENA SARA ZACHARIAH** BY PUBLIC PROSECUTOR SMT.K.B.SONY **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-112020, ALONG WITH CRL.A.553/2004, THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:** Crl.A.553/2004 & Crl.A.566/2004 3 ## **JUDGMENT** **[ CRL.Appeal.553/2004, CRL.A.566/2004 ] Dated this the 20th day of November 2020** The complainant in CC No.56/2001 & C.C.No.559/1998, both of the Additional Chief Judicial Magistrate, Ernakulam, under Section 138 of the NI Act, aggrieved by the dismissal of the application seeking prosecution under Section 138 of NI Act, is the appellant herein. 2,The original complainant, one Kanakamma instituted two criminal cases against one Balan as CC No.557/1998 and CC No.558/1998, another one as CC No.56/2001 against son of Balan by name Kannan, and CC No.559/1998 against Sumangala, the wife of Balan. According to the original complainant, Kanakamma, she had financial dealings with Balan who was doing business. He often borrowed money from her. When the debt got accumulated, accused Balan executed few cheques in favour of Kanakamma. After dishonour of cheque on the strength of two cheques for a sum of Rs.87,500/- each, two criminal cases were filed before the ACJM, Ernakulam invoking Section 138 of the NI Act, against Balan. On the strength of Ext.P17 cheque for Rs.87,500/-, dated 21/8/1996, executed by Kannan, CC No.56/2001 was laid before the Crl.A.553/2004 & Crl.A.566/2004 4 Additional CJM, Ernakulam. In C.C.No.559/1998, it was alleged that Sumangala had received a sum of Rs.87,500/- from Kanakamma and towards the discharge of that liability, Ext.P12 cheque dated 20/8/1996 for a sum of Rs.87,500/- was executed and delivered by Sumangala. Claiming that four cheques indicated separate money transactions, complaints were laid by Kanakamma. Accused appeared , denied the allegations and contested the proceedings. Pending the original complaint, Kanakamma died. Her son was permitted to pursue the criminal complaint. After his death, his wife Vijaya Ravindran sought permission to continue the proceedings. Complainant was substituted with the said Vijaya Ravindran. Before the court below, the cases were jointly tried and evidence was let in the form of oral testimony of the complainant. On the side of the complainant, Vijaya Ravindran was examined as PW1. Exhibits P1 to P21 were marked. There was no defence evidence. However, Ext.D1 a copy of the complaint in O.S.No.637/1999 was produced and marked. The Court below on the basis of the available materials found Balan guilty in C.C.No.557/1998 and convicted him. He was acquitted in other case. The court below found that in CC Nos.56/2001 and 559/1998, the complainant could not establish the existence of monetary liability and that the cheques were issued by Kannan and Sumangala towards the discharge of any legally enforceable debt. Consequently, both the complaints were dismissed. Aggrieved by the above dismissal, these Crl.A.553/2004 & Crl.A.566/2004 5 appeals have been preferred. 3. Heard the learned counsel for the appellants and the learned counsel for the respondents. Examined the records. 4. It is an admitted fact that Balan was known to the original complainant as a business man and he used to borrow money from the original complainant . It is not in dispute that he did not pay back the amount promptly. He also admitted that he gave several cheques. According to the complainant, Balan gave two signed cheques for Rs.87,500/- each, towards the monetory transaction that he had with Kanakamma. Towards the individual transaction of wife and son of Balan with Kanakamma, they also gave one cheque each, for a sum of Rs.87,500/- each. It was stated that all the four cheques on presentation were returned dishonoured due to insufficiency of funds. Notices were issued separately to the accused. They were returned as unclaimed. Hence, separate complaints were filed. All the cases were jointly tried and the court below acquitted the accused in CC No.558/1998 CC No.56/2001 and CC No.559/1998. This has resulted in the present criminal appeals. 5. Defence of Balan was that he had financial transaction with the original complainant. He had issued 11 signed cheques to her. Thereafter, complainant filed criminal case against the accused. It was settled and towards the interest portion, two chequs were procured from Balan one from wife and one from son. The blank signed cheques so procured were Crl.A.553/2004 & Crl.A.566/2004 6 misused, it was contended. Specific defence set up by the wife and son was that during the pendency of the criminal proceedings, the matter was settled through discussion. However, complainant demanded interest for Rs.87,500/-. He sought three months time for discharge. Time was granted on condition that Balan, his wife and son should give separate cheques. Accordingly, the blank signed cheques were entrusted by Balan to Kanakamma. These cheques were misused by Kanakamma. 6. To establish the case of the complainant, present complainant got examined. She gave evidence in support of her case. Evidently, the accused has set up a case that cheques were not supported by consideration and blank signed cheques were issued only as security for the interest payable to the complainant for the loans received. In the light of the defence that money transaction had not taken place with Balan and that the disputed cheques Ext.P17 and Ext.P12 dated 21/8/1996 and 20/8/1996 respectively were issued as security to the transaction of Balan with the original complainant, the burden was heavily on the complainant to prima facie establish that the cheques were supported by consideration. Complainant is bound to establish the existence of debt and execution of cheques towards the discharge of liability and such other details. 7. To substantiate the case of the complainant, PW1, tendered evidence. She deposed that she knew the transaction between Kanakamma and the accused. According to her, since her marriage, she Crl.A.553/2004 & Crl.A.566/2004 7 has been living with Kanakamma. According to her, the original loan was in 1996. Even after the death of Kanakamma, the amount was not paid by the accused. According to PW1, the total amount so borrowed was Three and half Lakhs of Rupees. Ext.P17 is a cheque for Rs.87,500/given by Kannan. The cheque is dated 21/8/1996. According to PW1, Rs.87,500/- was given to Sumangala who was in need of money. She issued Ext.P12 Cheque for Rs.87,500/- dated 20/8/1996. PW1 further stated that mother-in-law had income and she was running a 'C' Class shop near a Cinema theatre at Aluva. She gave evidence that initially she used to give Rs.10,000/- to 20,000/- to the accused and when it got accumulated to Rs.3,50,000/-, cheques were issued. Only at that time, she realized that the accused were in financial difficulties. Even though she asserted that her mother-in-law used to maintain accounts, she admitted that it was not in her custody at that point of time. 8. The above facts suggest that evidently there were money transactions with Balan. However, except the oral version of PW1, there is no other independent evidence regarding the transaction with wife and son of Balan. It was held by the court below that though complainant was earning some income from the small shop which she was running, there is nothing to suggest that she had the financial capacity to advance a substantial loan of Three and half Lakhs Rupees, even in installments. Complainant has not explained the details of money transaction . It is also Crl.A.553/2004 & Crl.A.566/2004 8 strange that liability under each of four cheques is the same as Rs.87,500/-. It has come out in evidence that, the complainant claimed that there were separate transactions with the accused, strangely she filed only one civil suit along with six other legal heirs against Balan. The contention of the learned counsel for the accused was that, if there was any bona fides in the allegation of the complainant that the accused have signed the above cheques, she would have initiated four civil suits. It is also true that in the complaint it is stated that Cheque mentioned in the suit was issued towards part payment of Rs.3,50,000/-. However, PW1 could not explain why separate suits were not filed as the basis of all the four chequs. Now the case set by the accused seems to be that at the time of settlement of transaction governed by Ext.D1, the complainant demanded interest of Rs.87,500/-. Accused requested for three months time for settling the payment. As a condition for granting time, three cheques were obtained from Balan, his wife and son. 9. However, it is pertinent to note that accused have not replied to the notice which were returned unserved. Accused has no case that the particulars shown in the letters are wrong and that it was returned for any valid reasons. Another weakness of the accused is that he had admitted signature on the cheques, though the execution of the cheques is vehemently denied. However, the complainant cannot build up his case on the basis of the weakness of the accused alone. He has to Crl.A.553/2004 & Crl.A.566/2004 9 independently establish the allegations. Learned counsel for the appellant, to substantiate his contentions relied on the decision reported in _**Joseph Jose v. J.Baby & Ors (2002 (2) KLJ 332).**_ In reply, learned counsel for the accused relied on _**Ramachandran S.v. B.Bhanuvikraman Nair and Another(2017 (5) KHC 75)**_ , _**ANSS Rajashekar v. Augustus Jeba Ananth (2019 (2) KHC 155), Sarath N. V.Ramachadran N.A. and Another ( 2020 (1) KHC 405),Joshy P.G. v. Jose Varghese and Another (2019 (4) KHC 753).**_ 10. In the light of the above facts and appreciating the evidence of PW1, it is clear that she could not establish that both the disputed cheques were supported by consideration and that the cheques were delivered towards legally recoverable debt. It is also to be noted that the original complainant was running a 'C 'class shop. There is nothing on record to show that she could manage to raise such a huge sum of Rs.3,50,000/-. It is also highly doubtful that after entering into several transaction with Balan and after cheques were dishonoured, still the complainant continued to repose confidence and further money were advanced to the wife and son of Balan. Having considered these facts, I am inclined to hold that court below correctly appreciated the facts and arrived at the conclusion that the complainant failed to establish that the accused had on receipt of valid consideration, executed Exts.17 and Ext.P12 cheques. I find no reason to Crl.A.553/2004 & Crl.A.566/2004 10 interfere with the findings of the court below. Crl.Appeals fail and are dismissed. **Sd/-** **SUNIL THOMAS** dpk **JUDGE**