E.R. Premarajan v. Nimitha Prem Pranam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **CRL.A.No.978 OF 2011** **AGAINST THE JUDGMENT IN CRA 704/2002 DATED 29-11-2008 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY** ## **C.C.NO. 524/1999 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY** ## **APPELLANT/RESPONDENT/COMPLAINANT:** **E.R.PREMARAJAN AGED 52 YEARS S/O ACHUTHAN, GENERAL STORES, OPP.ASHOKA HOSPITAL, SOUTH BAZAR, KANNUR, THROUGH POWER OF ATTORNEY HOLDER, K.P.SOMASUNDARAN.** **BY ADV. SRI.P.U.SHAILAJAN** ## **RESPONDENTS/APPELLANT/ACCUSED & STATE:** **1 NIMITHA PREM PRANAM, NEAR ERANHOLI BRIDGE, P.O.CHIRAKKARA, THALASSERY. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.K.R.AVINASH KUNNATH SRI.U.P.BALAKRISHNAN R2 BY SRI. M.S.BREEZ, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:** Crl.Appeal No. 978 of 2011 2 ## **JUDGMENT** This appeal is pitted against two divergent findings by the trial court and the Sessions Judge in appeal. Complainant in a proceedings alleging offence punishable under Section 138 of the Negotiable Instruments Act, has moved this Court under Section 378(4) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the correctness of the judgment acquitting the first respondent. C.C.No.524/1999 was originated before the Judicial First Class Magistrate, Thalassery, on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act. The appellant contended that in consideration of a loan of Rs.1,80,000/-, borrowed on 02.04.1999, and in discharge of the liability, the first respondent issued the Ext.P1 cheque dated 10.05.1999, drawn on the Catholic Syrian Bank Ltd., Thalassery Branch. The appellant presented the cheque for encashment through the Punjab National Bank, but it was dishonoured due to insufficiency of funds. Thereafter, the appellant caused to issue a lawyer notice, but it was returned unclaimed. Then the complaint was instituted whereupon, the first respondent was summoned. She pleaded not guilty and faced Crl.Appeal No. 978 of 2011 3 trial. 2. The matter is being pursued by the power of attorney holder, all along. The power of attorney holder was examined as PW1 and Exts. P1 to P7 were marked on the side of the complainant. On conclusion of evidence, when examined under Section 313(1)(b) of the Cr.P.C., the first respondent reiterated the plea of innocence. To the last question, she said that she does not know the complainant, that she had borrowed an amount of Rs.20,000/-, from the elder brother of her husband, the power of attorney holder and the cheque was issued in consideration of that amount as security; even though the amount was repaid, the cheque was not returned. In defence, she gave evidence as DW1. After hearing counsel on both sides, by judgment dated 27.11.2002, the learned Magistrate upheld the arguments of the appellant and found the first respondent guilty of offence under Section 138 of the Act and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for three months. Aggrieved by the same, the first respondent preferred appeal before the Sessions Court under Section 374(3)(a) of the Cr.P.C. After hearing counsel on both sides, by the impugned judgment, the learned Additional Sessions Judge, Crl.Appeal No. 978 of 2011 4 Thalassery, reversed the finding of conviction and acquitted the first respondent. Against that finding, the complainant has preferred this appeal, after obtaining leave of the Court under Section 378(4) of the Cr.P.C. 3. I heard the learned counsel on both sides. The learned counsel for the appellant argued that after having admitted the execution of the subject cheque, inconsistent stands have been taken by the first respondent. She did not even receive the notice, even though it was sent in her correct address. In cross examination of PW1, the power of attorney holder, she took the stand that the Ext. P1 was issued in consideration of Rs.20,000/- borrowed by her from the power of attorney holder for the marriage of her daughter. But when gave evidence as DW1, she maintained that the amount was borrowed by her husband from PW1 and the Ext.P1 was handed over in a signed blank form, as security. The learned counsel also complained that the Sessions Court did not appreciate the contentions properly. The decision relied on by the Sessions Court in **G. Gopan v. Tonny Varghese and Another [2008 (1) KLT 257]** has no application to the facts of the case. The court was also not justified in concluding that the appellant, E.R. Premarajan is an imaginary person. Relying on the Crl.Appeal No. 978 of 2011 5 decision in **Narayanan A.C. and Another v. State of Maharashtra and Others [2013(4) KLT 21]** , the counsel submitted that prosecuting a complaint under the Negotiable Instruments Act by the power of attorney holder cannot be a taken as an issue for acquitting the accused. 4. On the other hand, the learned counsel for the first respondent strongly supported the finding of the Sessions Court in appeal. According to him, the mere reason that the signature on the negotiable instrument was admitted by the first respondent, does not amount to admission of execution. According to the counsel, the appellant had failed to prove the execution of the document and therefore, there was no occasion for the court to draw the presumptions available in favour of the complainant. 5. As noticed above, the complaint was preferred on the premise that the first respondent, after borrowing an amount of Rs.1,80,000/- had issued the Ext.P1 cheque, which on presentation bounced due to insufficiency of funds. Thereafter, the first respondent was attempted to be alerted through a statutory lawyer notice, but it was not received; the notice returned unclaimed and thus the complaint was preferred. After taking evidence, the trial court entered Crl.Appeal No. 978 of 2011 6 a conviction against the first respondent, which was reversed in appeal. 6. Whatever may be the divergent stand taken by the first respondent, it is quite patent that the Ext.P1 cheque belongs to her. She had also admitted her signature on the document. According to her, it was issued in a signed blank form, without incorporating other writings, namely the name of the drawee, the amount etc. Thus she wanted to make the court believe that the cheque was issued in such a manner, in consideration of a loan of Rs.20,000/-, availed by her from the power of attorney holder; even though the amount was repaid, the instrument was not returned and thereafter, by misusing the document such a false case was foisted against her. 7. As mentioned earlier, the first respondent had admitted her signature on the document. It is her case that it was issued in a signed blank form. The Hon'ble Supreme Court has considered such a question in **Bir Sing v. Mukesh Kumar [AIR 2019 SC 2446]** . Addressing a similar question, the court held thus:- “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 Crl.Appeal No. 978 of 2011 7 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.” It is also held in paragraph 40 of the judgment that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 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. It is a judgment rendered by two hon'ble judges of the Supreme Court. In the decision reported in **Kalamani Tex and Another v. Balasubramanian P. [ILR 2021 (1) Kerala 855]** , the above decision has been reiterated by the Hon'ble Supreme Court. According to the apex court, even if we take such an argument that a blank cheque was given, yet the statutory presumption cannot be obliterated. 8. Now, as noticed earlier, the first respondent has no dispute about the instrument and the signature found thereon. Ext.P1 bears the signature and the name of the first respondent put in her own hand, Crl.Appeal No. 978 of 2011 8 which is admitted by her. No doubt the other writings are in different hand. Prime reason for reversing the finding of the trial court by the learned Additional Sessions Judge is this patent difference in the handwriting on the other parts of the document. But once the first respondent has admitted her signature, it renders the complainant/ appellant capable to draw the presumptions under Sections 118 and 139 of the Act. It is for the first respondent to rebut the presumption at least by preponderance of probabilities. 9. The question then arises for consideration is whether the first respondent could rebut the presumption. After revisiting the evidence, in my assessment, the answer should be in negative. From the very outset, she had been taking a negative attitude. Even though the lawyer notice was tendered in her correct address, she refused to receive the same. It is a matter of adverse inference. Her first expression of the transaction had come up when the power of attorney holder, PW1 was cross examined. Then she took the stand that the document was given in consideration of Rs.20,000/-, borrowed by her, that the said amount has already been repaid. But when she gave evidence as DW1, a different version has come, that the amount of Rs.20,000/- was borrowed by her husband from PW1 and she had Crl.Appeal No. 978 of 2011 9 merely handed over a signed blank cheque for Rs.20,000/-. The first respondent is the sister-in-law of PW1, power of attorney holder. The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the signature in Ext.P1 stands admitted, it is for her to rebut the presumptions; that has not been attempted. 10. Moreover, a plea of discharge raised by the first respondent also remains on the papers. She had said that the sum of Rs.20,000/-, borrowed by her was already repaid and still the cheque was not returned. It is trite that the burden of proving a plea of discharge is on the person who raises the contention. Particulars of such repayment are lacking. It also does not stand the reason that, in spite of repaying the amount, she had not taken steps to get back the document alleged to have given as security. 11. The learned counsel for the first respondent argued that the appellant is a fictitious person, such a person is not available and everything was stage managed by PW1. It is true that the first respondent has taken such a plea. But when she was examined as DW1, at the beginning stage itself she has stated that she knew the complainant. After taking such a stand in her chief examination, she Crl.Appeal No. 978 of 2011 10 cannot be heard to take a contention challenging the identity of complainant. 12. The upshot of the above discussion is that the appellant is entitled to succeed. Ext.P1 cheque can be found to be issued in discharge of a legally enforceable liability as seen on its face value. The presumptions available in favour of the complainant are not rebutted. That would attract the offence under Section 138 of the Act. That means the finding of the lower appellate court acquitting the first respondent cannot be sustained and is liable to be interfered with and the conviction entered by the trial court is to be restored. Consequently, the first respondent is sentenced to pay fine Rs.1,80,000/- (Rupees One Lakh and Eighty Thousand only), in default to undergo simple imprisonment for one year. When the amount is realised, it shall be paid to the appellant as compensation. The appeal is allowed as above. SD/- **K.HARIPAL JUDGE** DCS/23.03.2021