Flora Fernandes v. K.P. Umadevi and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946** **CRL.A NO. 217 OF 2006** **AGAINST THE JUDGMENT DATED 03.12.2005 IN ST NO.3149 OF 2003 OF** **JUDICIAL MAGISTRATE OF FIRST CLASS-I, PERINTHALMANNA** ## **APPELLANT/COMPLAINANT:** **FLORA FERNANDAS, W/O. STANLI FERNANDEZ, FLORENCE VILLA, ANGADIPPURAM, PARIYAPURAM DESOM, PUTHANANGADI.** ## **RESPONDENTS/ACCUSED & STATE:** **1 K.P. UMADEVI, OFFICE OF THE ASST. DIRECTOR OF AGRICULTURE, CALICUT ROAD, PERINTHALMANNA.** **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADVS. VIPIN NARAYAN, Sr.PUBLIC PROSECUTOR SRI.K.R.AVINASH KUNNATH SRI.ABDUL RAOOF PALLIPATH** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **01/08/2024, THE COURT ON 05.08.2024 DELIVERED THE FOLLOWING:** 2 **Crl.Appeal No.217 of 2006** ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal No.217 of 2006 --------------------------------------------Dated this the 5th day of August 2024** ## **J U D G M E N T** This appeal under Section 378(4) Cr.P.C. has been filed by the complainant aggrieved by the judgment dated 03/12/2005 in S.T.No.3149/2003 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna, by which the first respondent/accused has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act). 2. to the the accused on According complainant, 20/02/2003 borrowed an amount of ₹70,000/- promising to repay the same within a period of three months. When the money was borrowed, in discharge of the same, the accused issued Ext.P1 cheque dated 12/06/2003 for ₹70,000/- drawn on the South Indian Bank, Perinthalmanna branch. When the cheque was presented for 3 ## **Crl.Appeal No.217 of 2006** encashment, the same was dishonoured due to insufficient fund in the account of the accused. Hence the complainant caused to issue Ext.P4 lawyer notice to the accused ; Ext.P4(a) is the postal receipt and Ext.P5, the acknowledgment card showing that the notice was received by the accused. The accused sent Ext.P6 reply raising false and untenable contentions. Hence the complaint. 3. When the accused appeared before the trial court on receipt of summons, he was furnished with copies of all the relevant records relied on by the complainant. The particulars of the offence punishable under Section 138 of the Act was read over and explained to the accused, to which she pleaded not guilty. 4. PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. After the evidence of the complainant was closed, the accused was questioned under Section 313(1)(b) Cr.P.C. The accused denied all the incriminating circumstances adduced in evidence against her. According to the accused, an amount of ₹35,000/- had been borrowed by her in November 2000 4 ## **Crl.Appeal No.217 of 2006** in connection with her daughter's marriage. From December 2000 onwards, she had been paying ₹3,500/- per month towards interest. In January 2003, she repaid a sum of ₹15,000/-. The balance to be repaid was only ₹20,000/-. When the amount of ₹35,000/- was borrowed, a signed blank cheque was given to the complainant as security. The cheque has been filled up and the complaint filed. 5. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, found the case of the accused to be more probable and hence believing the defence version, acquitted the accused under Section 255(1) Cr.P.C. Aggrieved, the complainant has come up in appeal. 6. The only point that arises for consideration in this appeal is whether there is any infirmity, irregularity, illegality or perversity in the findings of the trial court calling for an interference by this Court. 7. On receipt of notice, the accused had entered appearance through a lawyer. On 07/12/2015, this Court has 5 **Crl.Appeal No.217 of 2006** ## passed the following order - “ _After having heard the learned counsel on both sides, this Court felt that the matter could be compromised between the parties. On suggestion by the court, it was agreed to and the respondent/accused will pay a sum of ₹20,000/(Rupees twenty thousand only) within one month from today directly to the counsel for the appellant and file a memo to that effect. … … ...”_ Thereafter when the matter came up for hearing, the learned counsel for the respondent submitted that he has no instructions in the matter. Hence Adv.Bhavana V. was appointed on State Brief to assist this Court. 8. Heard both sides. 9. The trial court acquitted the accused believing the case of the accused that a blank signed cheque had been issued as security when she had borrowed a sum of ₹35,000/- for the marriage expenses of her daughter during November 2000. In the reply notice and in her Section 313 statement, the accused contended that from December 2000 onwards she had been paying 6 **Crl.Appeal No.217 of 2006** a sum of ₹3,500/- towards interest ; that in January 2003, she had repaid a sum of ₹15,000/- ; that the balance amount was only ₹20,000/- and that she had handed over a blank signed cheque to the complainant when the amount of ₹35,000/- was borrowed by her, which has been filled up by the complainant and the present complaint filed. Apart from taking such a defence stand in Ext.P6 reply notice and while questioned under Section 313 Cr.P.C., no evidence was let in by the accused to establish the same. The defence case put to the complainant, when examined as PW1, was denied by the latter. However, the trial court chose to believe the version of the accused. According to the trial court, there was some financial transaction between the complainant and the accused ; that it appears to be a case whether the complainant lent money on huge interest after obtaining a signed blank cheque from the accused ; that the fact that the cheque was not written in the handwriting of the accused would cast serious doubt on the case of the complainant ; that the materials on record showed no warm relationship between the parties so as to persuade the complaint to 7 ## **Crl.Appeal No.217 of 2006** lend an amount of ₹70,000/- to the accused ; that the explanation given by the accused appears to be more probable and that it appear to be a case where the complainant obtained a signed blank cheque of the accused, filled up the same and presented it before the bank. The trial court did notice that the accused was not entitled to handle her cheques in an irresponsible manner. However went on to hold thus - “ _However one cannot forget the hard reality that on occasions like marriage of a daughter persons are compelled to obtain the money at huge rate of interest by furnishing signed blank cheques as security. The statement of the accused that she had borrowed only a sum of Rs.35,000/- and had paid interest at the rate of Rs.3,500/per month for two full years and had paid a principal amount of Rs.15,000/- appears to be more genuine than the hollow claim of the complainant. Greedy persons cannot be permitted to take advantage of the presumption of law to gain an unfair advantage over hopeless victimes of unfortunate circumstances. The presumption of law are meant ta assist the law abiding and real justice seeking persons. I am not at all convinced by the statement of PW1 regarding the execution of Ext.P1 cheque. It is true that_ 8 ## **Crl.Appeal No.217 of 2006** _u/S.114 of the Evidence Act the court may if it so think proper can draw a presumption that the cheque was executed by the accused in case the signature on the cheque is admitted. However that is a discretionary power vested on court. Drawing a presumption u/S.114 is not mandatory. The circumstances of this case do not pursuade me ta draw such a presumption. The complainant has miserably failed to prove that Ext.P1 cheque was issued by the accused in discharge of a legally enforcible debt. As the execution is not proved, the presumption u/S.139 of the Negotiable Instruments Act does not arise. Even if such a presumption arise, the same is rebutted by the circumstances of the case._ ” 10. I am afraid such conclusions made by the learned Magistrate is ignoring the binding precedents of the Apex court as well as of this Court. In **Bir Singh v. Mukesh Kumar, 2019(1) KHC 774 : (2019)4 SCC 197** , the Apex court held that a meaningful reading of the provisions of the Act, in particular, Sections 20, 87 and 139 would make it 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 9 ## **Crl.Appeal No.217 of 2006** cheque had been issued for payment of a debt or in discharge of a liability. It would be immaterial that the cheque may have been filled up 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 Section 138 of the Act would be attracted. 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. Even when a blank cheque leaf, voluntarily signed and handed over by the accused, towards some payment is made, the same would attract presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 11. Therefore, it is immaterial that the entries in Ext.P1 have been made by a person other than the accused herein, as long as the signature in the same is admitted. The accused in this case 10 ## **Crl.Appeal No.217 of 2006** admits her signature in Ext.P1 cheque. She has no case that she had signed the cheque or parted with it under any threat or coercion. She also does not have a case that her unfilled signed cheque had been stolen by the complainant. 12. Apart from the reply notice and the defence version in 313 statement, no evidence whatsoever has been let in by the accused to prove her defence stand. Under Section 118 of the Act, unless the contrary is proved, it has to be presumed that the cheque had been made or drawn for consideration. Under Section 139, the court has to presume, unless the contrary is proved that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints alleging commission of the offence punishable under Section 138 of the Act, the court has to presume that the cheque has been issued for a debt or liability, which presumption is rebuttable. The burden of proving that a cheque had not been issued for a debt or liability is on the accused (See **Beena v. Muniyappan, AIR 2001 SC 2895 : 2001 KHC 832** and **Hiten P. Dalal v. Bratindranath Banerjee (2001)** 11 ## **Crl.Appeal No.217 of 2006** **6 SCC 16** ). Mere denial by the accused of the transaction is not sufficient to rebut the presumption contained under the aforesaid Sections. The accused will have to prove in the trial by leading cogent evidence that there was no debt or liability. The accused not having led any evidence could not be set to have discharge the burden cast on her. The accused not having discharged the burden of proving that the cheque had not been issued for a debt or liability, would certainly be liable under Section 138 of the Act. 13. Here the fact that Ext.P1 cheque was dishonoured due to insufficient funds in the account of the accused has been proved by the testimony of PW1 and Exts.P2 and P3. The issuance of Ext.P4 notice has been proved by Ext.P4(a) receipt and the fact that the notice was served on the accused is proved by Ext.P5 acknowledgment card. The accused has no case that the notice had not been sent within the prescribed time or that the complaint had not been filed within the prescribed time. Therefore, the evidence on record clearly establishes the offence under Section 138 of the Act. The presumption available under Sections 118 and 12 ## **Crl.Appeal No.217 of 2006** 139 of the Act, has not been rebutted by the accused in any manner. Therefore, I find that the trial court had apparently erred in acquitting the accused and hence the impugned judgment requires to be interfered with. In the result, the appeal is allowed. The impugned judgment is set aside. The accused is found guilty for having committed the offence punishable under Section 138 of the Act and hence she is sentenced to imprisonment for a day till the rising of the Court and to a fine of ₹70,000/- and in default of payment of fine to simple imprisonment for one month. The fine amount if realised shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/