E.J.George v. Rajan Jacob & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 **CRL.A.No. 1690 of 2004** (CC.103/2003 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA) .................... APPELLANT/COMPLAINANT: ----------------------------------------- E.J.GEORGE, S/O.JOSEPH, ELAMBESSERIL VEETTIL, KARIMANNOOR KARA, KARIMANNOOR VILLAGE, THODUPUZHA. BY ADV. SRI.T.V.GEORGE SMT.LINDA GEORGE RESPONDENTS/ACCUSED: -------------------------------------- 1. DR.RAJAN JACOB, S/O.JACOB, THOTTAPLACKAL VEETTIL, MONIPPALLIL KARA, MONIPPALLIL VILLAGE, MEENACHIL TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.NARENDRA KUMAR FOR R1 SMT.LEENA KRISHNAN FOR R1 BY PUBLIC PROSECUTOR SMT.LAKSHMI RANI.K.L. FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/12/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No. 1690 of 2004 --------------------------------------------Dated this the 12[th] day of December, 2008** ## **J U D G M E N T** This appeal is filed at the instance of a complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). As per the impugned judgment, the trial court acquitted the accused under Section 255(1) of the Code of Criminal Procedure and hence, this appeal. 2. The case of the complainant is that the accused borrowed an amount of Rs.2,00,000/- on 13.1.2003 from the complainant and towards the discharge of the said liability, on the same day of borrowal itself, a postdated cheque, bearing date as 20.1.2003 for the aforesaid amount, was given. It is the further case of the complainant that when the said cheque was presented for encashment, the same was dishonoured for the reason “Payment stopped by the drawer” and hence, according to the complainant, a lawyer notice i.e., Ext.P4 dated 31.1.2003 was issued to the accused intimating him regarding the dishonour of cheque and demanding to pay the amount covered by the cheque. Crl.A. NO.1690 of 2004 :-2-: The said notice was received by the accused on 1.2.2003. The accused issued Ext.D1 reply to the above notice, denying the execution, issuance of cheque and also the transaction. As the amount was not paid, the complainant approached the court below by filing a complaint under Section 138 of the N.I.Act. When the accused appeared, the particulars of the allegations contained in the complaint were read over and explained to him to which he pleaded not guilty which resulted in further trial during which PWs.1 and 2 were examined and EXts.P1 to P7 were marked from the side of the complainant. When the incriminating circumstances, emerged during the evidence of the complainant, were put to the accused, he denied the same. It is the further case of the accused that the cheque in question viz., Ext.P1 was not executed and issued in favour of the complainant as claimed by him, but on the other hand, the same was entrusted with one P.E.Joseph from whom the accused availed of loan and the said cheque was given as a security. It is also the case of the accused that the said cheque was stolen by DW1 who is the son of said P.E.Joseph and entrusted the same with PW1/the complainant based upon which the present case is Crl.A. NO.1690 of 2004 :-3-: foisted against the accused. On the basis of the pleadings, rival contentions and materials on record, the court below considered three issues for its determination and finally found that Ext.P1 cheque was not issued by the accused to PW1/the complainant for discharging his liability as alleged and accordingly, found that the accused is guilty under Section 138 of the N.I.Act. Consequently, the accused is acquitted. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard learned counsel for the appellant as well as the contesting respondents. 4. Learned counsel Mr.T.V.George appearing for the appellant vehemently argued that the complainant has established his case by adducing sufficient and cogent evidence regarding the transaction, execution and issuance of cheque. Therefore, according to the learned counsel, the statutory presumption under Section 139 of the N.I.Act is available in favour of the complainant and the accused has miserably failed to rebut the presumption. Thus, according to the learned counsel, the order of acquittal passed by the court below is liable to be set aside. Learned counsel pointed Crl.A. NO.1690 of 2004 :-4-: out that the defence has no consistent case and the falsity of the defence case itself is sufficient to interfere with the order of acquittal passed by the court below. 5. Per contra, the learned counsel appearing for the first respondent/accused submits that except the interested version of PW1/the complainant, there is no statutory and acceptable evidence to attract the ingredients of Section 138 of the N.I.Act. The learned counsel pointed out that merely on the basis of EXt.P1, it cannot be said that Section 138 of the N.I.Act is attracted against the accused. It is the further case of the counsel that even though the complainant has miserably failed to establish a prima facie case, so as to avail of the presumption under Section 139 of the N.I.Act, the accused has succeeded in establishing a probable case and thereby, rebutted the presumption which is otherwise available under Section 139 of the N.I.Act. The learned counsel pointed out that the defence case is not put up for the first time, at the time of trial, but it can be traced back at least from the date of Ext.P7, which is bearing date as 2.1.2003. Thus, the learned counsel submits that after having satisfied with the probability of the defence case, the trial Crl.A. NO.1690 of 2004 ## :-5-: court came into a finding that the cheque in question was not issued by the accused in favour of the complainant on the basis of the alleged transaction and accordingly, the accused was acquitted and by such acquittal, the innocence of the accused is once again reinforced. Thus, it is submitted that while exercising the appellate jurisdiction, such order of acquittal may not be interfered with by this Court. 6. I have carefully considered the contentions of both counsel and also perused the materials and evidence on record. 7. The case of the complainant is purely based upon Ext.P1 cheque. When PW1 was examined, he had stated that on demand of the accused, a sum of Rs.2,00,000/- was given as loan on 13.1.2003 and he had received Ext.P1 cheque dated 20.1.2003. In his chief examination, he had stated that because of his friendship with the accused, the said amount was given. In cross examination, he had deposed that he is an owner of an autorickshaw and occasionally, he used to drive the auto. He had also stated that he is also having 50 cents of property. To a suggestive question that he had no capacity to pay Rs.2,00,000/-, he answered that it was not Crl.A. NO.1690 of 2004 :-6-: correct. He said that near the house of the accused, he had property during the year 1989. It was also stated that the property was in the name of his wife. Though he had stated that there was frequent transaction with the accused, no details are given. In this juncture, it is relevant to note that the accused, who himself was examined as DW4, had stated that he is a Doctor by profession and he had Doctorate in Medicine. He had also stated that he was not having any prior acquaintance with the complainant and he is seeing the complainant for the first time in the court. It is his case that Ext.P1 cheque was entrusted with his friend one P.E.Joseph Paradiyil. He had also stated that in Ext.P1, he had put his signature only and he had preferred Ext.P7 wherein it is stated that the cheque in question was lost while he was travelling in a bus. According to him, the said P.E.Joseph told him that the cheque was missed on 2.1.2003. According to him, on the same day itself, he went to his bank and lodged EXt.P7 stop memo. In the chief examination itself, DW4 stated that as told by the said P.E.Joseph, he went to the bank for the purpose of issuing the stop memo. It was also his case that the Secretary of the Bank advised him to give the stop Crl.A. NO.1690 of 2004 :-7-: memo by giving some reason. According to him, actually it was not while travelling in the bus, the cheque was lost. It was also his version that such an endorsement was made in Ext.P7 so as to book the person who brings the cheque and to entrust the said person with the Police. It is also his case that he was not aware as to who had taken the cheque at the time when he gave Ext.P7 memo. The accused had further stated that on getting EXt.P4 notice from the complainant, he had shown the same to the said P.E.Joseph and then, the said Joseph stated that the cheque in question would have been stolen by his son. The said fact has been, according to the accused, put in black and white by the said Joseph in fifty rupees stamp paper and the original of the same was entrusted with the Advocate for filing a criminal case. He had also stated that he had caused to send Ext.D1 notice to the counsel for the complainant. He had also stated that he preferred a petition before the Kuravilangad Police, but there was no action. It is also his case that he had preferred a private complaint before the Judicial First Class Magistrate Court, Palai against the complainant in the present case and against Mr.Saji Joseph, DW1 who is the son of the said Joseph. Crl.A. NO.1690 of 2004 :-8-: At the time of trial of the present case, that private complaint was pending trial in the same court. 8. In this juncture, it is relevant to consider the decision of the Apex Court reported in **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008(1) KLT 425(SC)]. In the above case, the Hon'ble Apex Court has 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. From the above, it is clear that even if the holder of cheque is able to prove the execution and issuance of cheque, no presumption can be drawn regarding the existence of debt. In the present case, even going by the deposition of PW1, it can be seen that a substantial huge amount was alleged to have given as loan to the accused without any security and there is no other evidence to prove such a transaction. The evidences available on record, according to me, are not sufficient to show that the complainant has that much financial capacity to give such a huge amount as loan, that too without any claim or provision for interest. There is also dearth of evidence to show the relationship between the Crl.A. NO.1690 of 2004 :-9-: complainant and the accused to part with such substantial huge amount without any security. 9. Still then, this Court in the decision reported in **Johnson Scaria** v. **State of Kerala** [2006(4) KLT 290] has held that admission of signature in a cheque goes a long way to prove due execution and possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But, under Section 114 of the Evidence Act, appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered. In view of the above decisions, the court has to draw presumption and inferences based upon the materials on record and also on the basis of explanation offered. In the present case, as observed by the trial court, the evidence on the side of the complainant is not sufficient to show the execution, the issuance of the cheque and also the transaction. At the same time, the defence has a specific case as to how Ext.P1 cheque reached in the hands of the complainant. Such defence case is not for the first time taken Crl.A. NO.1690 of 2004 ## :-10-: at the time of trial. As pointed out earlier, it can be traced from the date on which the accused issued Ext.P7 on the basis of the information he got from Sri.P.E.Joseph regarding the theft of Ext.P1 by his son. Of course, in Ext.P7, the reason given is that the cheque in question was lost while travelling in a bus. But, he had given a convincing explanation as to why such a reason was stated in Ext.P7. When Ext.D1 reply was sent to Ext.P4, the same defence was taken and he denied the execution and issuance of cheque in favour of the complainant. It is also borne out from records that even prior to the present complaint, he had caused to issue Ext.D6 lawyer notice to DW1 and that DW1 denied the acceptance of Ext.D6 notice and thereby, it is proved that DW1 had issued Ext.D3 reply notice. Thereafter, the accused has also filed a private complaint before the Judicial First Class Magistrate Court, Palai, when the Police failed to take any action on his complaint before them. Going by these materials and on appreciation of the same, I am of the view that the defence has made out a probable case. 10. The Honourable Apex Court in the decision reported in **Narayana Menon** v. **State of Kerala** [2006(3) Crl.A. NO.1690 of 2004 :-11-: KLT 404(SC)] has held that applying the said definitions of 'proved' or 'disproved' to principle behind S.118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The standard of proof evidently is preponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records, but also by reference to the circumstances upon which he relies. On application of the above dictum in the present case, I am of the view that the defence succeeded in establishing a probable case. Therefore, the trial court has correctly found that the complainant has failed to establish the execution and the transaction and according to the trial court, the defence version is more probable. It was on such a Crl.A. NO.1690 of 2004 :-12-: conclusion, the trial court came into a conclusion that the accused is not guilty of the charge levelled against him. In the decision reported in **Ghurey Lal** v. **State of U.P.** [2008 (4) KLT SN 17 (C.No.17)(SC)], the Apex Court has elaborated seven circumstances under which the appellate court can interfere with an order of acquittal. In the said decision, the Honourable Supreme Court has held that the appellate court can interfere with the order of acquittal only when there are very substantial and compelling reasons. I find no such substantial and compelling reasons to interfere with the order of acquittal passed by the trial court. Consequently, the appeal fails. In the result, there is no merit in the appeal and the appeal is dismissed. **V.K.Mohanan, Judge** MBS/ Crl.A. NO.1690 of 2004 :-13-: **V.K.MOHANAN, JJ.** -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T ## Crl.A. NO.1690 of 2004 :-14-: DATED: -12-2008