Hazeera U.P. v. Sarath Kumar.K.V

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` CRL.A NO. 311 OF 2019 ``` ``` AGAINST THE JUDGMENT IN C.C.NO.37/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, HOSDURG DATED 14.12.2018 ``` ## **`APPELLANT/COMPLAINANT:`** ``` SARATH KUMAR.K.V, AGED 27 YEARS S/O.RAMAKRISHNAN T.P, KAVUNGU VALAPPIL, KARIYAPPU, ARAVANCHAL P.O, KASARGOD DISTRICT. ``` ``` BY ADV SRI.T.V.JAYAKUMAR NAMBOODIRI ``` ## **`RESPONDENTS/ACCUSED AND STATE:`** ``` 1HAZEERA.U.P, W/O.NOUFA, UDINOOR PURAYIL HOUSE, KANTHILOT, PADNE P.O., KASARGOD DISTRICT-671 312. 2STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS.R1 BY SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU R2 BY SMT.NIMA JACOB, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal No.311 of 2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 06[th] day of June, 2023** The appeal on hand is directed against a judgment passed by Judicial First Class Magistrate Court-III, Hosdurg (for short ‘the trial court’) on 14.12.2018 in C.C.No.37/2018. 2. The appellant is the complainant in C.C.No.37/2018, which is a prosecution launched by him before the trial court against the accused alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’). 3. Sworn statement of the complainant was recorded pursuant to the filing of the complaint and cognizance was taken by the trial court. Summons was served on the accused. Pursuant to the receipt of summons, the accused entered appearance. Particulars of the accusations were read over to her. She pleaded not guilty and thus faced trial. ``` Crl.Appeal No.311 of 2019 ``` ``` 3 ``` 4. The complainant himself was examined as PW1 and Exts.P1 to P5 were marked. On the side of the accused, evidence was not adduced. After appreciating the evidence on record, a finding was arrived at by the trial court that the complainant failed to establish the execution of the cheque and accordingly acquitted him under Section 255(1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). Aggrieved by the judgment, the complainant is now before this Court in the appeal on hand. 5. Sri.Jayakumar Namboodiri, the learned counsel for the appellant contended that only an initial burden is cast upon the complainant in a prosecution under Section 138 NI Act only to establish that there was voluntary issuance of a signed cheque by the accused to him, that the cheque was bounced for insufficiency of funds during its presentation for encashment and that the statutory notice issued by him to the accused was not responded to. According to him, the complainant in the case on hand has satisfactorily discharged his initial burden by establishing the above aspects and therefore, the presumption under Section 139 NI Act is attracted in his favour. According to him, the ``` Crl.Appeal No.311 of 2019 ``` ``` 4 ``` onus would then be on the accused in the case on hand to adduce evidence to rebut the presumption. According to him, the accused has taken a number of defences in the case on hand but, failed to establish any of those. The accused has challenged the source of money for the complainant to advance the money covered by Ext.P1. The defence secondly taken was that the disputed cheque was given by the husband of the accused to the complainant to discharge the monetary liability towards him and that was misused by the complainant to launch the prosecution in question. But, the accused was not succeeded in adducing evidence to establish any of the defences taken by her and thereby the presumption under Section 139 NI Act stood unrebutted. 6. According to him, the complainant is not obliged to establish his source to advance the money, in a complaint filed under Section 142 NI Act. According to him his stand as above is fortified by the dictum in **Sunitha v. Sheela** **Antony and Another** [2020 (3) KHC 138]. 7. The learned counsel has also relied on **Oriental Bank of Commerce v. Prabodh Kumar Tewari** [2022 (5) ``` Crl.Appeal No.311 of 2019 ``` ``` 5 ``` KHC 560 (SC)] to rest his contention that presumption which arises on signing of the cheque cannot be rebutted merely by the report of a handwriting expert. According to him, it has also been held in the case that evenif the details in the cheque were contended as not filled up by the drawer but by the complainant or any other person, that will not help the accused in establishing the defence taken that the blank signed cheque given as security has been misused to launch the prosecution. In **Oriental Bank of Commerce** supra relied on by the learned counsel, the accused has applied for forwarding his signature for getting opinion of an expert in the matter but was rejected by the court and the order when assailed, the Apex Court held that the opinion of an expert on handwriting will not help the accused to canvass that presumption Section 139 N.I. Act has been successfully rebutted by him. 8. The learned counsel has also relied on **Rasiya P. v. Abdul Nazer and Another** [2022 KHC 6900 (SC)] to contend that when initial burden was discharged by the complainant that a signed cheque was voluntarily issued by the accused to him and the same was not denied by the ``` Crl.Appeal No.311 of 2019 ``` ``` 6 ``` accused, onus to prove the contrary was on the accused, since the presumtipn under Section 139 NI act would operate. In the case on hand the trial court has stated the reasons for acquitting the accused as failure of the complainant to narrate all details about the transaction and also his source of funds to advance the amount to the accused. It is now settled that the entire details of the transactions and the source of funds are not required to be stated in a complaint filed to launch the prosecution under Section 138 NI Act. Therefore, it is contended that the trial court undoubtedly has gone wrong in passing the impugned order of acquittal of the accused for the reasons. 9. When the evidence on record is analysed in the backdrop of the decisions discussed above, it is found that the accused does not have a case that Ext.P1 was obtained from him forcefully or that it was stolen from him. According to him, Ext.P1 was issued by him to the complainant as security in a monetary transaction. That itself indicates that the issuance of Ext.P1 by the accused to the complainant was a voluntary one. ``` Crl.Appeal No.311 of 2019 ``` ``` 7 ``` 10. The signature in Ext.P1 was not disputed. The specific case of the accused was that Ext.P1 was a signed cheque issued as security in a monetary transaction, the liability towards which was totally discharged. According to her, inspite of the discharge of the liability, the cheque issued as security was retained and misused for launching the prosecution on hand, which is a totally false case. 11. Once voluntary issuance of a signed cheque to the complainant is admitted by the accused, as held by the Apex Court in _**Bir Singh Vs. Mukesh Kumar [2019 (1) KLT 598 (SC)],**_ the presumption under Section 139 NI Act would be attracted in favour of the complainant that the cheque was issued by the accused towards a debt or liability. It was held by the Apex Court in the case that difference in the handwriting by which the entries in the cheque were filled will not support an argument that the cheque was materially altered and misused by the complainant. The Apex Court has held that by issuing a cheque having the signature of the drawer voluntarily but otherwise unfilled, would give an implied authority to the person to whom it was issued to fill up the entries and to present it for collection. ``` Crl.Appeal No.311 of 2019 ``` ``` 8 ``` 12. Though it was alleged by the accused that the disputed cheque was issued as security in a transaction creating some monetary liability other than the one pleaded by the complainant in the complaint and in spite of the discharge of the liability it was retained and misused by the complainant to launch the prosecution falsely against her, the accused failed to adduce any evidence to establish the same. 13. Therefore, this is a case where the complainant has discharged the initial burden under Section 138 NI Act and the accused failed to adduce any cogent evidence to discharge the onus of rebutting the presumption under Section 139 NI Act which was attracted in favour of the complainant. Ext.P1 was proved as presented for encashment and returned bounced for the reason insufficiency of funds in the account of the accused wherefrom it was drawn. 14. Statutory notice mandated under Clause (b) of proviso to Section 138 NI Act was also established as served on the accused and not responded to by the accused by sending a reply notice or by repaying the money covered by the cheque. ``` Crl.Appeal No.311 of 2019 ``` ``` 9 ``` 15. Therefore, the complainant was successful in establishing all the valid ingredients constituting the offence under Section 138 NI Act but the trial court failed to reach a finding that an offence under Section 138 NI Act was proved by him and accordingly accquitted the accused. Therefore the impugned judgment is liable to be reversed. In the result, appeal is allowed. Judgment of the trial court is set aside. Accused is found guilty for the offence under Section 138 NI Act. He is convicted and sentenced to undergo imprisonment till rising of the court and to pay fine of `5,50,000/-. In case of default in payment of fine, the accused shall also undergo simple imprisonment for five months. The fine amount on realisation shall be defrayed as compensation in favour of the complainant under Section 357(1)(b) Cr.P.C. Sd/- **MARY JOSEPH** **JUDGE** NAB