Francis Antony K.G v. Suma John & State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Abraham Mathew
BenchType: Single Judge
Judgment Date: 2015-03-13
Court Decision / Holding: Appeal dismissed; acquittal sustained; no proof of execution of cheque; presumption under Section 139 NI Act rebutted by circumstances; defence version found probable; evidence insufficient to convict under Section 138 NI Act.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

Francis Antony K.G

Respondents

Suma John
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. M.A. Asif

Counsels for Respondents

• Public Prosecutor SMT. R. Rema

Case Synopsis & Summary

The appellant, Francis Antony K.G, was the complainant in CC No.529/2013 before the Judicial First Class Magistrate, Kochi, alleging dishonour of a cheque under Section 138 NI Act. He claimed to have lent Rs.20 lakhs to the first respondent (Suma John) on the understanding of repayment within three months, and Rs.15 lakhs to her husband in Feb 2012, both without formal documents due to their cordial friendship and the family’s involvement in real estate. The cheque dated 27-08-2012 was returned dishonoured, and despite demand, payment was not made. The trial court acquitted the first respondent, holding that execution of the cheque was not proved. On appeal, the appellant contends the loans were genuine and the cheque was issued in discharge of liability; he suggests the relationship and lack of documentation do not negate his case and relies on Lekha v. Manickan to support discarding the defence version. The defence raises that the appellant’s brother had used him to file complaints and that the cheque might be one of several signed blank cheques given to a third party, Thomas, causing the litigation to be a hired prosecution. The High Court ultimately agrees with the acquittal, noting credibility issues, probable defence, and absence of proof of execution, upholding the trial court’s order and dismissing the appeal.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Presumption under Section 139 NI Act; burden of proof to prove execution of cheque; credibility and probability of defence version

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that large loans were advanced to the respondent and her husband without formal documents due to close friendship and the real estate background. He asserts the cheque dated 27-08-2012 was issued in discharge of liability and dishonoured for insufficient funds. He contends that the trial court erred in not treating the evidence as proving execution of the cheque and that the defence version (in which the cheque is linked to a separate loan to the respondent's husband via a brother) is unreliable. He cites Lekha v. Manickan to argue that the complainant's version should be accepted unless contradicted by improbable circumstances, and that the presumption under Section 139 NI Act should be invoked and not easily rebutted.

Contentions of Respondents

The respondents argue the appellant’s version is unbelievable and full of inconsistencies. They claim there is no documentary evidence proving the loans, and the cheque could be one of the signed blank cheques given to Thomas (the appellant’s brother). The defence contends the appellant is a hired litigant and that the cheque may not have been executed by the respondent. They maintain that the cross-examined testimony raises reasonable questions about the origin of funds, the relationship, and the authenticity of execution, making the defence version probable and warranting acquittal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Lekha v. Manickan	2006 (4) KLT 800	Distinguished	Cited to support discarding the defence version, but the court distinguished the present case on facts, noting the appellant's version was unbelievable and the defence probable.

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** **FRIDAY, THE 13TH DAY OF MARCH 2015/22ND PHALGUNA, 1936** **CRL.A.No. 180 of 2015 () IN Crl.L.P.56/2015** **----------------------------------------------** **AGAINST THE JUDGMENT IN CC 529/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOCHI DATED 30-12-2014** **AGAINST THE ORDER IN Crl.L.P. 56/2015 OF HIGH COURT OF KERALA DATED 09-02-2015** **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. SUMA JOHN** **W/O.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. R. REMA** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **K. ABRAHAM MATHEW, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No.180 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of March, 2015** ## **J U D G M E N T** The appellant was the complainant and the first respondent the accused in C.C.No.529/2013 on the file of the learned Judicial First Class Magistrate Court-I, Kochi. In the complaint it was alleged that on 30.01.2011 the first respondent borrowed from the appellant Rs.20 lakhs and later to discharge the liability she issued a cheque bearing date 27.8.2012 and it was returned dishonoured by the bank for want of sufficient fund in her account and despite demand by notice she failed to pay the amount and thus she committed the offence under Section 138 N.I. Act. The trial court came to the conclusion that the evidence adduced by the appellant did not prove execution of the cheque by the first respondent and accordingly the learned Magistrate acquitted her of the offence. 2. Heard the learned counsel for the appellant. 3. The appellant allegedly lent Rs.20 lakhs on the Crl.A. No.180 of 2015 **-2-** promise that the first respondent would repay the amount within three months. The appellant also allegedly lent Rs.15 lakhs to the husband of the first respondent in February, 2012. Both these transactions were entered into because of the appellant's friendship with the family of the first respondent who was doing real estate business. The appellant alleged that he and the first respondent and her husband helped each other providing financial assistance and their families had cordial relationship. He further 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 first respondent and Rs.15 lakhs to her husband without taking any document to evidence the transactions and that too free of interest. 4. In the cross-examination of the appellant, who was examined as PW1, questions were put to him regarding his relationship with the family of the first respondent. He said that he knew the family for eight years. Though both parties resided in the same locality, the appellant had never Crl.A. No.180 of 2015 **-3-** gone to the first respondent's house; he had never talked to the first respondent on phone. The first respondent resided in a rented house. The appellant did not know the native place of the husband of the first respondent. I have no doubt that the allegation that the appellant and the first respondent were family friends is false. It appears that as they resided in the same locality they had a nodding acquaintance. It is quite unnatural that the appellant advanced a loan of Rs.20 lakhs to the first respondent free of interest without obtaining any document to evidence the transaction. 5. Going by the evidence of the appellant, the first respondent did not repay the amount as promised by her. Still the appellant would say he lent Rs.15 lakhs to her husband one year later free of interest and without obtaining any document to evidence the transaction. This is unbelievable. 6. PW1 testified that the first respondent issued him a cheque. Later, he said that the first respondent brought a Crl.A. No.180 of 2015 **-4-** filled up a cheque; but he did not see her writing anything in the cheque. It is a wonder that there is no mention about signing the cheque. But for the admission of the first respondent that the cheque bears her signature, there would have been no evidence even to prove that it bears her signature. Certainly, the attempt of the appellant is to compel her to prove non-execution of the cheque without discharging his burden to prove its execution. 7. Questions were put to PW1 with regard to his income tax returns and bank accounts. He admitted that the loan allegedly made to the first respondent is not shown in his income tax return. His admission proves that he did not deposit any big amount in his business account maintained with the banks. 8. The defence version is that the husband of the first respondent borrowed Rs.25 lakhs from K.G. Thomas brother of the appellant and as a security for the transaction K.G. Thomas obtained from him a cheque for Rs.25 lakhs and signed blank cheques from herself and her Crl.A. No.180 of 2015 **-5-** husband. The husband of the first respondent used to repay the amount in installments. When Thomas committed foul play, the first respondent's husband 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. The first respondent has set up a case that, in fact, this litigation is conducted by K.G. Thomas. 9. There are circumstances indicating that the appellant is only a hired litigant. Documents have been produced to prove that K.G. Thomas brother of the appellant has filed complaints against the first respondent and her husband 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 before the complaint was filed. His further statement that the first respondent's husband issued cheque one year and eight months after the Crl.A. No.180 of 2015 **-6-** loan transaction with him is admittedly wrong. PW1 could not mention the date of the cheque relied on by him in the complaint against the first respondent's husband. 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 his brother 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. The learned Magistrate rightly held that the Crl.A. No.180 of 2015 **-7-** appellant failed to prove execution of the cheque. The facts and circumstances of the case revealed in the evidence are sufficient to rebut the presumption, if any, under Section 139 N.I. Act. The order of acquittal is justified. There is no merit in the appeal. In the result, this appeal is dismissed. Sd/- **K. ABRAHAM MATHEW JUDGE** //True copy// P.A. TO JUDGE shg/