K. Appunni (Power of Attorney Holder of Rugmani A. Nair) v. Shajan and State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.A.No. 1067 of 2003() -----------------------AGAINST THE ORDER IN CRLP.96/2003 Dated 18/06/2003 ST.1235/1999 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... APPELLANT: COMPLAINANT ------------------------- K.APPUNNI, AGED 58 YEARS, ARUNIMA, GREEN GARDEN, THRISSUR-2 AS POWER OF ATTORNEY HOLDER OF SMT. RUGMANI.A. NAIR, AGED 45 YEARS, W/O. APPUNNI, ARUNIMA, GREEN GARDEN, THRISSUR-2 BY ADV. SRI.B.JAYASANKAR RESPONDENTS/ ACCUSED AND STATE -------------------------------- 1. SHAJAN, AGED 36 YEARS S/O. JACOB, KIDANGAN HOUSE, KANATTUKARA DO. POST, THRISSUR 680011 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. ADV. SRI.P.VIJAYA BHANU FOR R1 SMT.P.MAYA FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.N.KRISHNAN, J.** ........................................... CRL.A.NO.1067 OF 2003 ............................................. Dated this the 20[th] day of August, 2009 ## **J U D G M E N T** This is an appeal preferred against the order of acquittal passed by the Chief Judicial Magistrate, Trichur in S.T.No.1235/1999. It was a case filed under Section 138 of the N.I.Act. The points that arise for determination in the appeal are (1) whether materials are sufficient to hold the accused guilty under Section 138 of the N.I.Act and (2) is there anything to interfere with the decision rendered by the court below. ## 2. Points: Heard the learned counsel for the appellant as well as the 1[st] respondent. It is the case of the complainant that the accused had borrowed a sum of Rs.1,50,000/= and towards the discharge of the liability had issued Ext.P2 cheque which when presented for encashment returned with the endorsement of insufficiency of funds. A notice which was issued, returned as unclaimed and as the amount was not paid, action has been launched under Section 138 of the : 2 : ## CRL.A.NO.1067 OF 2003 N.I.Act. 3. The defence appears to be that the complainant is a friend of M.K.G. Kurup and both of them were working in Police department. There was some transaction between the accused and M.K.G. Kurup and towards the same, he had issued a blank cheque, that had been used by the complainant to file a case of this nature. 4. The evidence in this matter consists of oral testimony of PW1 and Exts.P1 to P7. Ext.P1 is the power of attorney. Ext.P2 is the disputed cheque. The other documents are the dishonour memo, notice and true copy of the account. In order to establish a case under Section 138 of the N.I.Act, the burden is squarely on the complainant to prove that there was a liability and towards the discharge of the liability, a cheque had been issued, which when presented for encashment returned for insufficiency of funds. So, when the execution is proved, a presumption may arise under Section 139 of the N.I.Act which of course can be rebutted by the other side. The law is very clear on the point that mere putting up of signature in a document is not a CRL.A.NO.1067 OF 2003 : 3 : sufficient proof for execution of the document. 5. The evidence is that of PW1. He is none other than the husband of the complainant. The accused is running a super market. According to PW1, acquaintance is that he used to purchase vegetables and other things from the said super market. According to him, on one day he phones up for certain amount and the complainant gives the amount. On the other hand, the suggestion of the accused is that there is no such transaction and the cheque that was issued to M.K.G. Kurup had been used in this case. It is also deposed by PW1 that the cheque was brought to him and it was written in his presence and sight. So, writing and affixing of signature is a continuous process so far as it relates to Ext.P1. 6. I had perused the cheque. Even with naked eyes it can be seen that the cheque was signed in black ink whereas the body of the cheque is written in blue ball pointed pen. Under ordinary circumstances, when a person executes a document with one pen, everything will be with that pen and each writing will not be by a separate pen. I am : 4 : ## CRL.A.NO.1067 OF 2003 referring to this for the reason that the case of the accused is that he had given a blank cheque to MKG Kurup and subsequently it had been filled up and a case of this nature is filed. So, a perusal of Ext.P2 digs at the case of the complainant. One may go to many shops and purchases things. But under ordinary circumstances one will not advance money just because one goes to the shop and purchases things unless there is a close acquaintance. Here the acquaintance is that of only a shop owner and a customer and nothing else. Further it is very curious to find that the accused phones up and ask the complainant whether there is any amount in the house. Immediately the husband and wife who had kept money for the purpose of constructing first floor of the house gives away that money even without taking any document. These are all very very unbelievable circumstances to prove the execution of the document. 7. The learned counsel for the appellant had cited before me a decision of the Apex Court reported in **Hiten P. Dalal v. Brattindranath Banerjee** (AIR 2001 SC 3897) : 5 : ## CRL.A.NO.1067 OF 2003 and he had specifically drawn my attention to paragraphs 21, 22 and 23. These are all cases where the court is legitimately entitled to draw a presumption when execution is proved in the case. There cannot be any presumption with respect to execution of a document. What the law incorporates is that when execution is proved the statutory mandate gives the presumption and not otherwise. Recently the Apex Court in the decision reported in **Krishna Janardhan Bhat v. Dattatraya Hedge** [2008 (1) KLT 425 (SC)] held that an accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the Prosecutor in a criminal case is different. This is taken note of by the Criminal Procedure Code also. That is why under Section 315 of the Cr.P.C it is stated that no accused shall be compelled to give evidence and under Section 315 (2) of Cr.P.C no court is competent to comment upon non-addusal of the evidence of the accused. So, it is the right which is conferred upon the accused. After analysing so many case laws the present position of law is that the burden of establishing the execution is : 6 : ## CRL.A.NO.1067 OF 2003 absolutely on the complainant where as when the accused adduces evidence which by preponderance of probability is sufficient to draw suspicion on the case of the complainant; then the benefit has to go to the accused. Here as stated by me earlier the circumstances and the evidence adduced are not sufficient so as to prove the execution of the cheque. When the execution of the cheque is not proved properly, there cannot be a cheque towards the discharge of the liability. Therefore, I do not find any ground to interfere with the decision rendered by the court below. Therefore, the appeal lacks merit and the same is dismissed. ## **M.N.KRISHNAN, JUDGE** ## **cl** : 7 : ## CRL.A.NO.1067 OF 2003 ## **M.N.KRISHNAN, J.** ........................................ CRL.A.NO.1067 OF 2003 ................................... 20[th] day of August, 2009 **J U D G M E N T** : 8 : CRL.A.NO.1067 OF 2003