Joseph Varghese Joe Nivas v. P. J. Alexander and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **CRL.A.No.404 OF 2011(A)** **AGAINST THE ORDER/JUDGMENT IN CRA 176/2009 DATED 12-01-2010 OF ADDITIONAL DISTRICT SESSIONS COURT,KOTTAYAM** **AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 56/2011 DATED 24-01-2011 OF HIGH COURT OF KERALA** ## **APPELLANT/1ST RESPONDENT/COMPLAINANT:** **JOSEPH VARGHESE JOE NIVAS, DEVAGIRI P.O., KANGAZHA, KOTTAYAM.** ## **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS/APPELLANT/ACCUSED & STATE:** **1 P.J.ALEXANDER POLACKAL HOUSE, BEHIND POLICE STATION, CHANGANACHERRY P.O.,, KOTTAYAM.686101** **2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY ADV. SRI.P.M.NATESAN R2 BY ADV. REKHA C NAIR, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.404 OF 2011(A) 2** ## J U D G M E N T This is an appeal filed against the acquittal u/s 378(4) of the Criminal Procedure Code (Cr.P.C) in a proceeding initiated u/s 138 of the Negotiable Instruments Act (for short N.I Act) in S.T No.101/2007 on the file of the Judicial First Class Magistrate Court-I, Kottayam. 2. The parties are referred to in this judgment as they were referred to in the trial court judgment, that is the complainant and the accused. 3. The complaint was filed for prosecuting the accused for an offence under Section 138 of the N.I Act. It was alleged that Ext.P1 cheque for an amount of Rs.40,000/- was issued by the accused in favour of the complainant towards the legally enforceable debt, that the cheque on presentation was dishonoured for want of sufficient funds, that Ext.P4 notice demanding payment was not heeded to and therefore the accused committed an offence punishable under Section 138 of the N.I Act. 4. PW1 and PW2 were examined on behalf of the complainant and Exts.P1 to P7 were marked. No defence evidence was adduced. 5. The trial court on appreciation of the evidence found that the accused is guilty of the offence punishable Under Section 138 of the N.I Act. Accordingly, he was convicted and sentenced to pay a fine of Rs.45,000/-, in default, to suffer simple imprisonment for 4 months. Out of the fine amount, Rs.40,000/- was ordered to be given to the complainant as compensation under Section 357(1) of Cr.P.C. Challenging the said conviction and sentence, the accused preferred appeal before the Sessions Court, Kottayam ## **CRL.A.No.404 OF 2011(A) 3** as Criminal Appeal No.176/2009. The learned Sessions Judge after hearing found that the complainant failed to prove the execution of Ext.P1 cheque and, hence, no offence under Section 138 of the N.I Act was made out. Accordingly, the conviction and sentence passed against the accused by the trial court were set aside and the accused was acquitted. Challenging the same, the complainant preferred this appeal. 6. Heard both sides. 7. The learned counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext.P1 cheque by examining PW1 and PW2 and, hence, presumption under Section 139 of the N.I Act would come into play and the accused has failed to rebut the said presumption. The first Appellate Court went wrong and committed illegality in acquitting the accused, argued the counsel. Per contra, the learned counsel for the accused submitted that the complainant has miserably failed to prove the transaction as well as the execution of Ext.P1 cheque and hence failed to discharge the initial burden cast upon him. The first Appellate Court rightly acquitted accused, submitted the counsel. 8. PW1 is the complainant. He adduced evidence in tune with the pleadings. According to him, he and the accused were friends since 1984 and the accused borrowed a sum of Rs.40,000/- from him for the benefit of his son, agreeing to repay within 6 months. He further deposed that, at the time of the said borrowal the accused issued a promissory note to him, the photocopy of which has been marked as Ext.P7. He also deposed that, after repeated demand for money covered by the promissory note, on ## **CRL.A.No.404 OF 2011(A) 4** 21.07.2006, the accused took from him the original of Ext.P7 promissory note and issued Ext.P1 cheque. PW2, is the scribe and witness to Ext.P7. He was examined to prove Ext.P7 and the transaction covered by it. He deposed that Ext.P7 was prepared by him in his handwriting. He further deposed that Ext.P7 was issued when the accused borrowed a sum of Rs.40,000/- from the complainant. 9. It is true that either in Ext.P4 notice or in the complaint, nothing has been stated about the transaction in detail which lead to the issuance of Ext.P1 cheque or about the issuance of Ext.P7 promissory note. In the complaint, what is stated is that the accused issued Ext.P1 cheque in discharge of a legally enforceable debt due to the complainant. This lack of pleading was found in favour of the accused by the Appellate Court. The Appellate Court further found that the complainant has failed to plead and prove the execution of the promissory note and without proving the execution of the promissory note and the consideration for that promissory note it is not possible to hold that the cheque was issued towards the repayment of the amount covered by the promissory note. The Appellate Court relied on the decision of this Court in **Shaji v. Ignatious and Another** [2009 (2) KLT 491] in support of the said finding. 10. The Negotiable Instruments Act raises two presumptions, firstly in regard to the passing of consideration as contained in Section 118 therein and secondly, the presumption that the holder of the cheque receiving the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is ## **CRL.A.No.404 OF 2011(A) 5** rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. Of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. 11. Coming to the facts of the case, though the execution of Ext.P1 cheque is disputed, his signature therein is not denied. The defence taken by the accused is that, on an earlier occasion, he had borrowed some amount from the complainant and at that time, a blank cheque was issued by him to the complainant as a security, which was later on misused and concocted as Ext.P1 cheque and a false complaint was made against him. The evidence in this case has to be evaluated in the back drop of the admission of the accused that he had borrowed certain sum of money from the complainant and at that time, a signed blank cheque was issued. 12. PW1 gave evidence that he and the accused were friends since 1984 and out of the said friendship, the accused borrowed a sum of Rs.40,000/- from him and at that time, Ext.P7 promissory note was issued. When he demanded that amount, accused took back the original of Ext.P7 from him and issued Ext.P1 cheque. It is true that it is not so stated in the complaint or in the notice. But, unlike in a civil case, there is no hard and fast rule that the evidence without pleadings cannot be looked into at all in a criminal prosecution initiated in private complaint. In a criminal case based ## **CRL.A.No.404 OF 2011(A) 6** on private complaint, the pleadings as well as the evidence before the court have to be appreciated together. What is pleaded is that the accused issued the cheque in question towards the discharge of a legally enforceable debt. The explanation regarding the said legal enforceable debt has been given in the evidence. As such, there is absolutely no contradiction between the evidence and pleadings. PW2 has been examined to prove Ext.P7. It is true that Ext.P7 is the photostat copy only. But it is pertinent to note that the definite case of the complainant is that, at the time of the issuance of Ext.P1, he gave the original of Ext.P7 to the accused and the said original is with the accused. Hence, the photocopy of the same which has been marked as Ext.P7 can be admitted in evidence under Section 65(a) of the Evidence Act. The complainant has given evidence that the original of Ext.P7 is in the possession of the accused. Though it is not necessary in a criminal prosecution that the accused should give evidence by entering into the box, when a specific plea is taken by the complainant, the accused ought to have mounted the box and gave evidence that the original of Ext.P7 is not with him. PW2 clearly gave evidence that he was a scribe of Ext.P7. He identified his handwriting in Ext.P7. He deposed that Ext.P7 was issued at a time when the accused borrowed Rs.40,000/- from the complainant. Even though PW1 and PW2 were cross examined at length nothing tangible were extracted from their testimony to discredit their version regarding the transaction and issuance of Ext.P1 cheque. In **Shaji** [supra], the Single Bench of this Court held that, without proving the execution of the promissory note and consideration for that promissory note, it is not possible to prove the case of ## **CRL.A.No.404 OF 2011(A) 7** the complainant that the cheque was issued towards the payment of amount covered by the promissory note. It is not a case where the complainant has set up a case that the cheque in question was issued towards payment of amount covered by the promissory note. On the other hand, the case of the complainant is that the promissory note was taken back by the accused and the cheque was issued. The complainant uses Ext.P7 only as a piece of evidence to prove the original transaction. The prosecution case is built up on the original transaction and the cheque which was issued subsequently and not on Ext.P7 promissory note. That apart, in the case mentioned above, no attempt was made by the complainant therein to produce even the photocopy of the promissory note or to prove the same. The witness to the promissory note was also not examined. These were taken into consideration by the court against the complainant there in. But, it is a case where the complainant produced Ext.P7 as a secondary evidence and proved the same in accordance with law by calling a scribe/witness to it. From the evidence of PW1 and PW2, I am satisfied that the complainant has succeeded in proving the transaction as well as the execution of Ext.P1 cheque. 13. As already stated, the signature in Ext.P1 cheque is not in dispute. Once signature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of the N.I Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature execution and handing over of the cheque. There is absolutely no evidence adduced to ## **CRL.A.No.404 OF 2011(A) 8** rebut the said presumption available to the complainant under Section 139 of the N.I Act. No evidence has been adduced by the accused to substantiate that actually on an earlier occasion, he has borrowed some amount from the complainant and at that time a blank signed cheque was issued as security. In spite of the receipt of lawyer's notice, the accused did not send any reply also. There is absolutely no evidence or circumstances probabalising the defence set up by the accused. 14. The learned counsel for the accused has relied on a decision of the Supreme Court in **John K. Abraham v. Simon C. Abraham and Another** [2014(1) KLT 90]. It was held that in order to draw the presumption under Section 118 read along with 139 of the N.I Act, burden is heavily upon the complainant to show that he had required funds for having advanced the money to the accused; that issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant. As stated already, even the accused himself admits that, on earlier occasion he had borrowed amount from the complainant. Thus the financial capacity of the complainant cannot be disputed. In Ext.P7, it has been stated that the accused borrowed a sum of Rs.40,000/- from the complainant. Thus, the payment has also been established. The burden cast upon the complainant has been well discharged. On an appreciation of the entire facts and circumstances and evidence on record it can be safely be concluded that the complainant discharged the burden in proving the execution of the cheque and therefore the statutory presumption under ## **CRL.A.No.404 OF 2011(A) 9** Sections 118(a) and 139 are in favour of the complainant and those presumptions were not rebutted by the accused. The trial court correctly analyzed the evidence and arrived at correct conclusion. On the other hand, the appellate court went wrong and committed illegality in acquitting the accused. The Supreme Court of India in **Ravi Kapur v. State of Rajasthan** [(2012) 9 SCC 284] has held that once a trial court has ignored the material piece of evidence and failed to appreciate the prosecution evidence in the correct perspective, then it would amount to failure of justice enabling the Appellate Court to interfere with the judgment of acquittal. The impugned judgment of acquittal, thus, cannot be sustained and is liable to be set aside. In the result, the appeal is allowed. (i). The judgment of acquittal passed in Crl.A No.176/2019 dated, 12[th] January, 2010 by the Court of Sessions of Kottayam is here by set aside. (ii). The judgment of the Judicial First Class Magistrate I, Kottayam in S.T No. 101/2007 dated 25[th] March 2009 is restored. Sd/- DR.KAUSER EDAPPAGATH RPS/ JUDGE