Gijo Fernandes v. Chacko S/O Joseph and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941** ## **CRL.A.No.282 OF 2004** **AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 116/2004 DATED 11-02-2004 OF HIGH COURT OF KERALA** **AGAINST THE ORDER/JUDGMENT IN CC 505/2001 DATED 16-01-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM** ## **APPELLANT/COMPLAINANT:** **GIJO FERNANDES S/O FERNANDES, BLOCK NO.174, NANGIANKARIPUTHENPURACKAL HOUSE,, KALLAR P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT.** ## **BY ADV. SRI.PRANOY K. KOTTARAM** ## **RESPONDENTS/ACCUSED & STATE:** **1 CHACKO S/O. JOSEPH, PULIKKATHUNDIYIL VEEDU, NEDUMKANDOM KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK,, IDUKKI DISTRICT.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SMT.A.SREEKALA SR.PP SRI.SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.A.No.282 OF 2004 2 ## **JUDGMENT** The complainant in CC No.505/2001 of the Judicial First Class Magistrate, Nedumkandom for offence punishable under Section 138 of the Negotiable Instruments Act is the appellant herein. He laid the above complaint on an allegation that towards the discharge of a legally enforceable debt, the accused executed and delivered Ext.P1 cheque for a sum of Rs. 5,15,000/- (Five lakh fifteen thousand rupees only) dated 30.04.2001 and handed it over to the complainant on 01.02.2001. Cheque was presented for collection and was returned dishonoured evidenced by Ext.P4. A statutory notice was issued which was returned as unclaimed. After complying with all statutory formalities, the complaint was laid. The accused appeared and contested the proceedings. On the side of the complainant, PW1 and PW2 were examined and Exts.P1 to P6 were CRL.A.No.282 OF 2004 3 marked. The accused examined himself as DW1 and let in the evidence of DW2 and DW3. Exts.D1 to D6 series were marked on the side of the accused. The court below evaluated the available evidence and concluded that the complainant did not succeed in proving the due execution of the cheque and the existence of a legally enforceable debt. Consequently, accused was found not guilty and acquitted. This is challenged in this appeal at the instance of the complainant. 2. Heard learned counsel for the complainant and the accused. 3. The signature on the said cheque is not denied. Other essential facts regarding the presentation of cheque, its dishonour and the institution of the complaint within the statutory limit are also not in dispute. The accused set up a defence that he was a real estate broker and was involved in the sale of a property held under a CRL.A.No.282 OF 2004 4 power of attorney by the complainant, in favour of one Antony and his wife. There was an understanding that the entire consideration payable as per the assignment deed was reserved to be paid in terms of assignment of 70 cents of land at Thookupalam belonging to Antony. Later it was found that there was a mortgage over the property created by the complainant and consequently, the latter part of transaction did not take place. To compensate the loss caused to the complainant he pressurized the accused, laid a complaint before the Police and under the undue influence of the Police a cheque was got executed at the Police Station on 08.05.2001. This is the crux of the defence. 4. In furtherance of the above defence it was contented that on 01.02.2001, which is the date of handing over the cheque, the accused was not in Station and he had gone to Bodinaikkannur. Further CRL.A.No.282 OF 2004 5 case that the cheque was signed at the Police Station. He had a yet another contention that the details of the transaction and the existence of a legally enforceable debt were not clearly disclosed in the complaint and in the lawyer notice. Both sides let in evidence to substantiate their respective contentions. 5. To substantiate the due execution of the cheque and the existence of the liability, the complainant tendered oral evidence as PW1 and sought support through the version of PW2. He gave evidence regarding handing over the cheque and the existence of the liability. On the other hand, DW1 gave evidence in support of his version and DW3 was sought to be examined to prove that on 01.02.2001 he had gone to Bodinaikkannur. To substantiate his contention that he was called to the Police Station and coerced to give the cheque, he relied on his own oral evidence. It is clear 6 CRL.A.No.282 OF 2004 that what exactly was the transaction between the complainant and the accused is not revealed in the complaint. Whether it was a loan transaction or the money due under any other transaction is also not disclosed. Even in the chief examination of the complainant he did not reveal the exact nature of transaction which resulted in the creation of legally recoverable debt. This was not pointedly asked to PW1 by the accused also at the time of cross examination of PW1. It seems that the cross examination was essentially a series of questions touching upon the defence proposed by the accused. However, the transaction that led to handing over the cheque was disclosed from the side of the complainant, for the first time through the oral testimony of PW2, who deposed that accused was the broker in a property transaction between the complainant and Antony and towards the money due under that transaction the cheque was given. This 7 ## CRL.A.No.282 OF 2004 version clearly shows that the cheque was issued on a money transaction arising out of the property deal between the complainant and Antony, in which the accused was the broker. Beyond this, there seems to be divergence of version by both sides. 6. The court below did not appreciate the alibi setup by the accused that he was not available on 01.02.2001 at Nedumkandom. The court also did not accept the version of the accused that he was called to the Police Station and coerced to execute the cheque. The court also did not appreciate the contention of the defence that the details of the transaction was not fully disclosed in the complaint. After declining to rely on the defence as above, the court proceeded to analyse the evidence in relation to the property transaction. It seems that thereafter court proceeded on certain assumptions and CRL.A.No.282 OF 2004 8 surmises and concluded that the transaction did not reveal the existence of a legally enforceable debt. If the court below did not appreciate the contention of the accused that he was called to the Police Station and coerced to execute the cheque, necessarily corollary is that the contention of the accused that the cheque was executed by undue influence could not have been thereafter accepted by the court. On the other hand, it is pertinent to note that the court also did not give much credence to the fact that there was no complete disclosure of the real transaction which resulted in the creation of legal obligation also. The court also did not give much thrust to the refusal to receive the lawyer notice and the absence of any reply. The court also did not go into the question whether in the facts and circumstances, the specific case of the accused was that the cheque was given under undue CRL.A.No.282 OF 2004 9 influence. However the accused did not lodge a complaint alleging undue influence. The learned counsel for the complainant contended that after the complainant had discharged his obligation by providing reliable evidence, all the legal presumptions under Section 139 of the Negotiable Instruments Act should have followed. Without accepting the above presumptions the court below proceeded to negative the evidences let in through PW1 and PW2 based on certain assumptions. The learned counsel relying on the decision in **Rangappa v. Mohan,[AIR (2010) SC 1898]** contended that the Supreme Court had held that the presumption arising out of Section 139 of the Negotiable Instrument Act is automatic to reliable evidence regarding execution and creates a reverse onas to prove otherwise. 7. In the above circumstances it is clear that though both sides had let in the substantial CRL.A.No.282 OF 2004 10 evidence, the appreciation of facts and application legal principles were over shadowed by the assumptions and surmises arrived by the court below. In the above process, the main issues of evidence regarding execution of cheque and whether the presumption has been duly discharged by the accused has not been properly considered. If the court arrives at a conclusion that the accused had duly discharged his obligation, what remained only was an appreciation of evidence. To that extent, the court below seems to have gone wrong. Having considered this, I am inclined to set aside the judgment of the court below and direct the court below to consider afresh the evidence let in by both sides in the light of the legal principles mentioned above. The court below shall consider the matter on the basis of the available materials as expeditiously as possible, at any rate within a period of three months from the date CRL.A.No.282 OF 2004 **==> picture [16 x 9] intentionally omitted <==** of receipt of a copy of this judgment. Both sides shall appear before the court below on 25.10.2019. ## **Sd/-** ## **SUNIL THOMAS** **JUDGE** spk