Jijo Joy v. Gayathri Suresh and State of Kerala

# **`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. 812 OF 2019 ``` ``` AGAINST THE JUDGMENT DATED 25.04.2017 IN S.T NO.6035/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III, KOLLAM ``` ## **`APPELLANT/COMPLAINANT:`** ``` JIJO JOY, AGED 42 YEARS, S/O JOY,,OF PAZHANJITHARAYIL,OLAYIL,THEVALLY, KOLLAM- 691009, NOW RESIDING AT THELEPARAMBIL HOUSE, KNRA 138,VTC ROAD, MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT,PIN-682304. BY ADVS. NISHIN GEORGE VIJAYABABU, HAFY PUNTHALA WILSON ``` ## **`RESPONDENT/ACCUSED/STATE:`** ``` 1GAYATHRI SURESH, AGED 44 YEARS W/O SURESH,MALAYALI SABHA NAGAR, 133,OLAYIL, THEVALLY, KOLLAM WEST VILLAGE,KOLLAM TALUK, KOLLAM DISTRICT,PIN-691009. 2STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,PIN-682031. BY ADV. B.MOHANLAL ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO.812/2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 06[th] day of June, 2023.** The appeal on hand is directed against the judgment passed by Judicial First Class Magistrate Court-III, Kollam (for short, ‘the court below’) in S.T No.6035/2015 on 25.04.2017. The appellant is the complainant in S.T No.6035/2015, which is a prosecution launched under Section 138 of the Negotiable Instruments Act, 1881 (For short, ‘the N.I Act’) 2. The 1[st] respondent in the appeal was acquitted by the court below for two reasons. The first one was the failure of the complainant to narrate all details of the transaction in the complaint and the second one was the failure of the complainant to establish the source of income for advancing `4,00,000/- to the accused. According to the learned counsel, the court below is totally erred in doing so. 3. Whether the court below is justified in acquitting the accused for the above two reasons is the question to be considered in the backdrop of the arguments advanced. The accused has brought in evidence while cross examining the complainant that the ``` CRL.A NO.812/2019 ``` ``` 3 ``` husband of the accused is a drunkard and the accused has no job or income. The circumstances which constrained the accused to borrow the huge amount was also not brought out during cross examination. According to the complainant, the accused assured that her husband working abroad would repay the borrowed amount to him on obtaining a loan applied by him from Gulf. 4. The court below found that it is the primary duty of the complainant to prove execution of the cheque and also his source of income to raise the money averred as advanced to the accused. 5. The court below also found that the complainant failed to narrate in the complaint about the enquiry made by him to be convinced of the financial status of the accused to repay the huge amount at the time of it’s borrowal. 6. In the view of the court below, the complainant is bound to narrate the above aspects in the complaint and then alone, the prosecution under Section 138 NI Act can be said to have been successfully launched. It is held that the complaint is defeated for failure of the complainant to narrate the above aspects in the complaint and therefore, the accused was acquitted. Whether the complainant needs to narrate all particulars of the transaction ``` CRL.A NO.812/2019 ``` ``` 4 ``` alleged in the complaint has come up for consideration of a Single Bench of this Court in **Divakaran K.K Vs. State of Kerala and Another** [2016 (4) KLT 233] and it was held in the affirmative. But, a Division Bench of this Court in **Basheer K Vs. C.K Usman Koya and Another [2021 (2) KHC 432]** has reversed the finding of the Single Bench by holding that it is _per incuriam_ and the legal position in **Divakaran** supra is not holding the field now. Therefore, without any tinge of doubt, this Court holds that the court below went wrong in relying on lack of description of particulars of the monetary transaction in the complaint for taking a view that the complainant is defeated and acquitting the accused. 7. The reason secondly projected for acquitting the accused was the failure of the complainant to establish the source of income despite the specific and precise challenge raised against that by the accused. 8. It is found from the averments in the complaint that `4,00,000/- was borrowed by the accused from the complainant for meeting some urgent personal requirements and a cheque was issued towards discharge of that monetary liability. 9. The case projected by the accused in defence was that the ``` CRL.A NO.812/2019 ``` ``` 5 ``` complainant who was a friend of the husband of the accused, visited the accused at his house while in hometown on leave and the cheque that formed basis for launching the prosecution was somehow obtained and a false case was foisted against him by misusing it. 10. To prove his case, complainant has deposed as PW1 strictly in tune with the averments made in the complaint. Exts.P1 to P5 were also marked in evidence. PW1 was cross examined with reference to his source of income to advance `4,00,000/- as loan to the accused and he replied that the amount was advanced to the accused from the funds received as consideration while disposing his vehicle and kept by him. At that juncture, the learned counsel for the accused demanded for production of relevant materials to establish those and the complainant expressed his readiness to produce those. But, he failed to produce any. Therefore, the court below was constrained to take the view that the complainant had no source of income to advance `4,00,000/-, which is a huge sum. 11. In the case on hand, the complainant has stated during cross examination that the money obtained while disposing his vehicle was kept with him and that was advanced to the accused on a demand being made. True that he failed to produce any materials in ``` CRL.A NO.812/2019 ``` ``` 6 ``` evidence to establish the version tendered during cross examination in spite of the undertaking made to produce those. But, his version about the source wherefrom the money was advanced was not denied. PW1 was only asked to produce some more evidence in that regard. Moreover, the dictum laid down by the Apex Court in **Tedhi Singh v. Narayan Dass Mahant** [(2022) 6 SCC 735] will come to substantiate the stand taken by the complainant that he is not bound to prove his source of money in a prosecution under Section 138 N.I Act. 12. The version of the complainant was that `4,00,000/was advanced to the accused when a demand for that was made by the accused from the money obtained by him by selling the vehicle and kept in his possession. 13. The legal position with regard to the prosecution under Section 138 N.I Act has been substantially settled when Apex Court laid the dictum in **Bir Singh Vs. Mukesh Kumar** [2019 (1) KHC 774 (SC)]as follows:- “It is immaterial that the cheque may have been filled in 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 S.138 would be attracted. If a signed ``` CRL.A NO.812/2019 ``` 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 a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. The subsequent filing of an unfilled signed cheque is not an alteration.” The Court held furthermore, “It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondentaccused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under S.139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion.” 14. The accused in the case on hand have not projected a case that the cheque was obtained by the complainant under any threat or coercion. He does not have a case that the complainant and the accused are in inimical terms at the time when the cheque ``` CRL.A NO.812/2019 ``` was allegedly obtained by the complainant from him. Rather, the accused has a specific case that her husband and the complainant were in cordial terms and the cheque was obtained during his visit of the house of the accused after arriving at his hometown from abroad and lateron misused for launching the prosecution. The accused has not stated about any prejudice of the complainant against the accused for obtaining the cheque of the accused from his house and to initiate the prosecution in question. What was established as obtained was a cheque and not a cheque leaf. The accused has a case that the prosecution was falsely launched by misusing the cheque. But, he has no case that his signature was forged in the cheque by the complainant after it was obtained from him. 15. Therefore, the cheque can be taken to have been issued by the accused in a signed form. When the accused has not raised a claim of forgery or theft as far as the cheque lost from his custody is concerned, the cheque can be taken to have been obtained by the complainant from the residence of the accused voluntarily. 16. The accused did not mount the box to depose on various aspects of the defence taken in the prosecution in question. The ``` CRL.A NO.812/2019 ``` defence version was already discussed hereinabove and found that the accused though tried his level best to make the version of the complainant regarding the transaction incredible and to establish his version of the transaction, he failed in his venture. His case that the disputed cheque was obtained by the complainant from his house when he visited there, stands not established. Admittedly the accused and the complainant were in good terms at the relevant time of his visit of the house of the latter and circumstances that prompted the complainant to do so, is not established from the evidence adduced by the accused. Moreover, a prudent man will never keep a cheque, which is a negotiable instrument in an open place so as to cause anyone to misuse it. How come the accused came to know that the complainant had obtained the disputed cheque from his house is also not revealed from the evidence let in by him. Therefore, in the case on hand, the version of PW1 that the disputed cheque was drawn from the account of the accused and issued to him to discharge the amount borrowed from him appears more probable and is liable to be believed. 17. For a satisfactory prosecution to lie under Section 138 N.I Act, five ingredients are required to be established and those ## **`CRL.A NO.812/2019`** ``` 10 ``` are: “1. The cheque must have been drawn for discharge of existing debt or liability. Legally recoverable debt: 2. Cheque must be presented within 3 months or within validity period whichever is earlier. 3. Cheque must be returned unpaid due to insufficient funds or it exceeds the amount arranged. 4. Fact of dishonour be informed to the drawer by notice within 30 days. 5. Drawer of cheque must fail to make payment within 15 days of receipt of the notice.” 18. The complainant has successfully established the above ingredients from the documentary evidence made available on record as Exts. P1 to P5. The context being so, the presumption under Section 139 N.I Act that the cheque has been issued in discharge of a debt or liability would be attracted in favour of the complainant and then the onus to rebut the presumption will be shifted to the accused. 19. The evidence adduced by the accused is already discussed with elaborately. In no stretch of imagination, it could be stated that the accused has discharged the onus to rebut the presumption satisfactorily. Therefore, the prosecution on hand is liable to succeed. The court below went wrong in holding that the ``` CRL.A NO.812/2019 ``` ``` 11 ``` complainant failed to establish execution and thereby acquitting the accused for offence under Section 138 N.I Act. The judgment under challenge deserves reversal. In the result, the appeal is allowed and the judgment of Judicial First Class Magistrate Court-III, Kollam in S.T No.6035/2015 under challenge is set aside. The complaint is allowed and the accused is found guilty for the offence under Section 138 N.I Act, convicted and sentenced to undergo simple imprisonment till rising of the court and to pay a fine of `4,00,000/within one month, and in case of default to undergo simple imprisonment for six months. The fine amount on deposit shall be defrayed as compensation to the complainant. Crl. Appeal is allowed accordingly. ``` Sd/- ``` ## **MARY JOSEPH** **JUDGE** JJ