High Court of KeralaSingle Judge2015-03-12Appeal dismissed; acquittal upheld.

Francis Antony K.G. v. John Mathew and State of Kerala

Case / Petition Number:CRL.A. No.179 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Abraham Mathew
Judgment Date: 2015-03-12
Court Decision / Holding: Appeal dismissed; acquittal of the first respondent maintained; no interference with the trial court’s order.
Final Disposition: Appeal dismissed; acquittal upheld.

Parties to the Case

Appellants / Petitioners

Francis Antony K.G.

Respondents

John Mathew
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.A. Asif

Counsels for Respondents

• Public Prosecutor Bindu Gopinath

Case Synopsis & Summary

This is a criminal appeal under Section 138 NI Act arising from an order of acquittal by the Judicial First Class Magistrate, Kochi in C.C. No. 527/2013. The appellant-complainant asserts that on 21 February 2012 he lent Rs.15 lakhs to the first respondent, a family friend, who allegedly promised to repay within four months. To discharge the purported obligation, the first respondent allegedly issued a cheque dated 27 August 2012, which was dishonoured for insufficient funds. The appellant contends the two financial transactions, including a prior loan of Rs.20 lakhs to the first respondent’s wife in January 2011, were independent acts of financial help premised on trust and friendship, and that the cheque represents discharge of the debt. The trial court found no proof of execution of the cheque and acquitted. On appeal, the appellant’s case is that there was a long-standing relationship and that the cheque was given in discharge of the debt, free of interest, without formal documentation. The respondents argue that the testimony is unreliable and that the defence reveals a plausible alternative, including a claim that the respondent’s loans involved third parties (notably K.G. Thomas) and signed blank cheques. The High Court upholds the acquittal, noting the lack of proof of execution, the probative value of cross-examination, and the need to respect evidentiary standards. The appellate court distinguishes the cited authorities and affirms the trial court’s decision.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 139 of the Negotiable Instruments Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that he advanced Rs.15 lakhs to the first respondent on 21 February 2012, free of interest and without any documentary evidence, based on friendship and family ties established through business dealings. He asserts that a loan of Rs.20 lakhs was given to the first respondent’s wife in January 2011, again without formal documentation, with promises of repayment. He claims the first respondent issued a cheque to discharge the debt, but evidence of the cheque’s execution is weak; the defence argues the cheque may belong to a third party (K.G. Thomas) and that signed blank cheques were provided as security. Relying on Lekha v. Manickan, the appellant seeks to discard the defence version given its supposed believability; however the court finds the appellant’s version improbable and the defence plausible, and thus upholds the acquittal.

Contentions of Respondents

The respondents contend that the cheque was issued in discharge of a liability to the appellant and that the appellant’s testimony is unreliable. They argue that there were other loans and business dealings involving the first respondent and his wife and that the cheque could be one of the signed blank cheques made available to a third party (K.G. Thomas). The defence asserts misgivings about the appellant’s credibility, points to the cross-examination showing inconsistencies, and maintains that the prosecution failed to prove execution of the cheque beyond reasonable doubt. The High Court’s task was to assess whether the trial court’s acquittal was warranted in view of the evidence and presumption under Section 139 NI Act, and to determine if an interference is justified.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Lekha v. Manickan	2006 (4) KLT 800	Distinguished	The court cited Lekha v. Manickan to illustrate a scenario where the court found no reason to doubt PW1’s oath, but distinguished the present case on the facts—finding the appellant’s version unbelievable and the defence probable, thus Lekha was not controlling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **THURSDAY, THE 12TH DAY OF MARCH 2015/21ST PHALGUNA, 1936** ## **CRL.A.No. 179 of 2015 ()** ## **-------------------------** ## **AGAINST THE JUDGMENT IN CC 527/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI DATED 30-12-2014** **AGAINST THE ORDER IN Crl.L.P. 57/2015 OF HIGH COURT OF KERALA DATED 9.2.2015** ## **APPELLANT/COMPLAINANT:** **------------------------------------------------** **FRANCIS ANTONY K.G. AGED 59 YEARS S/O.GEORGE, KARUKAPARAMBIL HOUSE CHILAVANOOR KADAVANTHARA P.O, KOCHI-682 020** ## **BY ADV. SRI.M.A.ASIF** ## **RESPONDENTS/ACCUSED & STATE:** **------------------------------------------------------------** ## **1. JOHN MATHEW** **KYNATTUMPILLY HOUSE, ELENJERIL CHILAVANOOR KADAVANTHARA P.O, KOCHI-682 020.** ## **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **K. ABRAHAM MATHEW, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A. No.179 of 2015** **- - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12[th] day of March, 2015** ## **J U D G M E N T** In this appeal the order of acquittal passed by the learned Judicial First Class Magistrate Court-I, Kochi in C.C.No. 527/2013 is challenged. The appellant was the complainant and the first respondent the accused. The allegation was that on 21.2.2012 the first respondent borrowed from the appellant Rs.15 lakhs, and later to discharge the liability he issued a cheque bearing date 27.8.2012 and it was returned dishonoured by the bank for want of sufficient fund in his account and in spite of demand by notice he failed to pay the amount and thus he committed the offence under Section 138 N.I. Act. The trial court found that there is no evidence to prove execution of the cheque and accordingly, he acquitted the first respondent. 2. Heard the learned counsel for the appellant. Crl.A. No.179 of 2015 **-2-** 3. The appellant's definite case is that on 21.2.2012 he lent Rs.15 lakhs to the first respondent, who promised to repay it within four months. In January 2011 the appellant advanced a loan of Rs.20 lakhs to the wife of the first respondent. Both these transactions were entered into because of the appellant's friendship with the first respondent and his wife, who were doing real estate business. The appellant would say that he, and the first respondent and his wife helped each other providing financial assistance; their families had cordial relationship. He claimed that the first respondent is a family friend, which is the reason why he advanced the huge amount of Rs.20 lakhs to the wife of the first respondent and Rs.15 lakhs to the first respondent without taking any document to evidence the transaction and that also free of interest. 4. Certain facts regrading the relationship between the parties were brought out in the cross-examination of the appellant, who was examined as PW1. He said that he knew Crl.A. No.179 of 2015 **-3-** the first respondent for eight years. Though they reside in the same locality he (PW1) has never gone to his house; he has never talked to him on phone. The first respondent resides in a rented house. The appellant does not know the native place of the first respondent. There cannot be any doubt that the allegation that the appellant and the first respondent were family friends is false. At best, the appellant had only a nodding acquaintance with the first respondent. The reason for the appellant's giving Rs.15 lakhs to the first respondent free of interest and without obtaining even a scrap of paper to evidence the transaction appears to be false. 5. It came out in the evidence of the appellant (PW1) that he lent Rs.20 lakhs to the wife of the first respondent in January 2011; she had promised to repay the amount within three months. But there was no payment. It cannot be believed that when the first respondent's wife failed to repay the amount even after one year, the appellant advanced another huge amount of Rs.15 lakhs to the first Crl.A. No.179 of 2015 **-4-** respondent that also without obtaining any document to evidence the transaction and free of interest. 6. Coming to the execution of cheque, in the examination-in-chief PW1 stated that the first respondent issued him a cheque. Thereafter, PW1 said that he brought a filled up cheque; but he did not see the first respondent writing anything in the cheque. There is no mention about signing the cheque. But for the admission of the first respondent that the cheque bears his signature there is no evidence to prove execution of the cheque. The attempt of the appellant is to compel the first respondent to prove nonexecution of the cheque without discharging his burden to prove its execution. 7. When PW1 was questioned about his income tax returns and bank accounts he smelt rat and said that he did not know whether the payment to the first respondent was shown in the income tax return. He added that he did not deposit any big amount in the business account maintained by him with the bank. Crl.A. No.179 of 2015 **-5-** 8. The defence version is that the first respondent had borrowed Rs.25 lakhs from K.G. Thomas brother of the appellant who obtained from him a cheque for Rs.25 lakhs and signed blank cheques from himself and his wife as security; when Thomas committed foul play, the first respondent refused to pay further installments. According to the first respondent the cheque relied on by the appellant is one of those signed blank cheques given to Thomas. He has a case that in fact K.G. Thomas is conducting this litigation. 9. There are some circumstances which indicate that the appellant is only a hired litigant. Evidence proves that K.G. Thomas has filed complaint against the first respondent and his wife alleging that they had borrowed huge amounts from him and failed to repay them in spite of demand by notice. In the cross-examination PW1 admitted that he did not know the name of the advocate who sent notice to the first respondent in this case before the complaint was filed. His further statement that the cheque Crl.A. No.179 of 2015 **-6-** was issued one year and eight months after the loan transaction is admittedly wrong. He could not mention the date of the cheque relied on by him in the case. He said that it is a date in the 9[th] month of the year. All these facts go to show that he has no idea about the facts of the case. This makes probable the defence version that he is conducting the litigation on behalf of K.G.Thomas. 10. Learned counsel for the appellant relies on the decision of this Court in **Lekha v. Manickan [2006 (4) KLT 800]** in support of his argument that the defence version should be discarded. That was a case in which the court of the opinion that there was no reason to doubt or suspect the statements on oath of PW1. There was no probable explanation as to how the cheque happened to be in the possession of the complainant. In the case on hand the appellant's version is unbelievable and the first respondent's defence is probable. 11. To sum up, the appellant failed to prove the execution of the cheque. The facts and circumstances of Crl.A. No.179 of 2015 **-7-** the case revealed in the evidence are sufficient to rebut the presumption, if any, under Section 139 N.I. Act. The learned Magistrate was fully justified in acquitting the first respondent. No interference is called for. In the result, this appeal is dismissed. Sd/- **K. ABRAHAM MATHEW JUDGE** //True copy// P.A. TO JUDGE shg/