Karuthedath Beeran v. N.P. Mammad and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941 ## CRL.A.No.2158 of 2008 AGAINST THE ORDER/JUDGMENT IN ST 330/2005 of CHIEF JUDICIAL MAGISTRATE ,MANJERI DATED 28-07-2008 ## APPELLANTS/COMPLAINANT: KARUTHEDATH BEERAN, S/O. YAHIM, THOTTADIPPADAM HOUSE, FAROOK COLLEGE P.O.,, KOZHIKODE. BY ADV. SRI.P.SAMSUDIN ## RESPONDENTS/ACCUSED & STATE: - 1 N.P.MAMMAD, S/O. AVARANKUTTY HAJI, NELLIPPARAMBAN HOUSE, KANHIRAPARAMBA,, CALICUT AIRPORT P.O., MALAPPURAM DISTRICT. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP ## SRI.K.B.RAMANAND, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. Appeal No.2158/2008 -2- ## **JUDGMENT** The appellant is the complainant and the first respondent is the accused in S.T. No. 330 of 2005 on the files of the Chief Judicial Magistrate Court, Manjeri for an offence punishable under Section 138 of the Negotiable Instruments Act. ## 2. The prosecution case is as follows: The first respondent borrowed Rs.5,00,000/- from the appellant and Ext.P1 cheque issued in discharge of the liability was dishonoured for want of sufficient funds in the account. Eventhough notice was sent, he has not cared to send a reply or repay the amount. Hence the complaint. 3. On the side of the appellant/complainant, PW1 was examined and Exts.P1 to P7 were marked. DW1 was examined on the side of defence. 4. The learned Chief Judicial Magistrate, as per judgment dated 30.12.2007, found the appellant not guilty of the offence and acquitted under Section 255(1) Cr.P.C holding that in the operative portion of the notice, there is no demand for payment of the amount covered by Ext.P1 cheque and it cannot be concluded that the accused is called upon to pay the cheque and hence, the same cannot be considered as proper demand. Aggrieved by the order of acquittal, the appellant has approached this court by filing Crl. Appeal No. 51 of 2008. Crl. Appeal No.2158/2008 -3- 5. This court, vide judgment dated 28.03.2008, held that Ext.P5 is a proper notice as provided under Section 138(b) of the Negotiable Instruments Act and remanded the matter for fresh disposal in accordance with law. After remand, no fresh evidence was adduced on either side. According to the first respondent, the cheque was issued as a security in another transaction when Rs.5000/- was borrowed from one Saidalvi, that the appellant is the uncle of Saidalavi and has utilised the cheque for filing a false complaint. DW1 was examined to prove that the cheque was issued for another transaction. The said Saidalavi is not cited or examined as a witness. Hence this appeal. 6. The learned counsel for the appellant contended that the first respondent has not issued any reply to the notice and there is no contention that there is another transaction between himself and the petitioner. Neither the transaction nor the signature or the issuance of Ext.P1 cheque was disputed by him. He has also contended that the place of transaction is not specifically mentioned in the complaint or affidavit. 7. I have gone through the evidence adduced by the appellant as well as the first respondent. The definite case of the appellant is that on 25.07.2005, the first respondent, who is having close acquaintance with the appellant/complainant, approached him and demanded a loan of Rs.5,00,000/- by making him to believe that he would repay the same Crl. Appeal No.2158/2008 -4- within one week. On believing the above representation, the complaint lent a loan of Rs.5,00,000/- on the same day. However, the first respondent has not repaid the amount within one week as agreed. Thereafter, on 10.08.2005, the accused issued a post dated cheque bearing No. 0434717 in favour of the first respondent at the residence of the Abdurahiman, Kondottyparamba, Manjeri. The appellant/complainant has represented the cheque for collection at the Service Co-operative Bank, Karuvamthiruthy. But, the cheque was returned unpaid on 09.09.2005 with a memo stating that 'funds insufficient'. 8. The complainant himself was examined as PW1 and his evidence would prove that the first respondent/accused approached him on 25.07.2005 and demanded a loan of Rs.5,00,000/- by promising to return the same within one week. He lent the loan of Rs.5,00,000/- on the same day. In spite of repeated requests, he has not returned the amount. However, the first respondent/accused came to the residence of one Abdurahiman Kondottyparamba, Manjeri and issued Ext.P1 cheque drawn on Manjeri Co-operative Urban Bank, Kondotty Evening Branch. When presented the cheque for collection, the same was returned unpaid with Exts.P2 to P4 memo stating that 'funds insufficient'. Thereafter, he has sent Ext.P5 lawyer notice intimating the dishonour of the cheque and demanding repayment of the amount. There is no challenge regarding the production of the cheque and the contention of Crl. Appeal No.2158/2008 -5- the first respondent is that he has not issued Ext.P1 cheque in favour of the appellant. According to the defence, there was no monetary transaction between the first respondent/accused and the appellant/complainant and Ext.P1 cheque was not supported by any consideration. The defence had a further contention that there was some money transaction between the first respondent/accused and one Saidalavi. The first respondent has borrowed Rs.5000/- from the said Saidalavi and handed over a blank signed cheque. The appellant is none other than the uncle of the said Saidalavi and he has lodged the present complaint by utilising the above cheque leaf. On the side of defence, one Kabeer has been examined as DW1, who has deposed before court that one Saidalavi, the son-in-law of the complainant was working along with him at Gulf Country, that the first respondent/accused obtained a loan of Rs.5000/- from the said Saidalavi and towards that transaction, the first respondent has given a blank signed cheque leaf to the said Saidalavi. In fact, the first respondent has totally denied the transaction. Then the burden is heavy on the appellant to establish that Ext.P1 cheque was issued for a duly dischargeable debt. The specific case of the appellant was that he had acquaintance with the first respondent. He approached him on 25.07.2005 and demanded Rs.5,00,000/- by representing that he would repay the same within one week. On believing his words, the appellant has given Rs.5,00,000/- on the same Crl. Appeal No.2158/2008 -6- day without obtaining any valid documents. PW1 has filed a proof affidavit and during cross examination, he has admitted that the first respondent is having acquaintance with him for the last several years and that three days' prior to the date of lending of the loan, the first respondent had demanded the loan and on 25.07.2005, he has given loan to the first respondent. During cross examination also, he has admitted that there is no transaction to the effect that the accused on 25.07.2005 demanded the loan and on the same day he lent the loan. PW1 is not having a consistent case with regard to the demand or issuance of the cheque. On the other hand, he has narrated that as the first respondent has not repaid the cheque amount, one Abdurahiman intervened and on 10.08.2005, the first respondent issued Ext.P1 cheque at the residence of the said Abdurahiman and the said Abdurahiman has filled up the cheque leaf. He has not stated such a case either in the complaint or in the chief affidavit. During cross examination, the appellant has got a case that on 25.07.2005, the first respondent demanded the loan and on the very same day itself, he lent Rs.5,00,000/- to the first respondent. As per the evidence of PW1, Ext.P1 cheque was issued at his residence as contended by the first respondent. But, this fact has not been mentioned either in Ext.P5 notice, complaint or in the chief examination. PW1 has stated that the transaction took place at Manjeri. The court below has held that non- Crl. Appeal No.2158/2008 -7- examination of vital aspects in the complaint or in the proof affidavit is very fatal, especially when the complainant is not a native of Manjeri and the amount claimed to have lent is a huge amount. It is also unbelievable that the appellant has given such a huge amount to the first respondent without any documents. Even at the time of cross examination, he has stated that the first respondent has approached three days prior to the alleged payment of Rs.5,00,000/-. It is also very difficult to believe the evidence of PW1 that he has handed over Rs.5,00,000/- to the first respondent without any documents and there is no evidence to prove that he had any previous transaction with the first respondent before the alleged transaction. PW1 has failed to establish that he was having sufficient cash with him at the time when the first respondent demanded the loan and PW1 has not examined any independent witnesses to prove that he has handed over Rs.5,00,000/to the first respondent without any documents. It is also important to note that he is alleged to have handed over Rs.5,00,000/- to the first respondent without claiming any interest. So, the evidence adduced by PW1 is quite unnatural. Further according to the version of PW1, one Abdurahiman has witnessed the issuance of cheque; but he was not examined in the case also. According to PW1, when the first respondent failed to repay the loan, one Abdurahiman intervened, mediated and at the instance of the said Abdurahiman, the first respondent has issued Crl. Appeal No.2158/2008 -8- Ext.P1 cheque and that the said Abdurahiman has filled up Ext.P1 cheque. At this juncture, the said Abdurahiman is the very crucial witness to prove the issuance of Ext.P1 cheque by the first respondent to the appellant. But the appellant has failed to examine him as a witness. According to the defence case, he has handed over a signed blanked cheque to one Saidalavi while he borrowed Rs.5000/- from him. The complainant is none other than the uncle of the said Saidalavi. According to the defence, PW1 has utilised the said blank cheque leaf given to the said Saidalavi and foisted a false case against the first respondent. Moreover, the court below held that the first respondent is a literate man and he used to write and there is no necessity to fill up the cheque by Abdurahiman, Manjeri. The said Abdurahiman was also not examined to prove that he has filled up Ext.P1 cheque. In fact, the appellant has no specific case regarding the time and place where the original money transaction took place. According to PW1, there was assertion on the part of first respondent to repay the amount within one week; but he has not repaid the amount even after getting Ext.P1 cheque. It is very important to note that PW1 has waited till 08.09.2007 for presenting the cheque for collection. 9. The learned counsel for the appellant has placed reliance on the decision in _**Kishan Rao v. Shankargouda**_ (2018 (3) KHC 684) and _**Rangappa v. Mohan**_ [2010 (2) KLT 682 (SC)]. In _Kishan Rao,_ it is held Crl. Appeal No.2158/2008 -9- that when the cheque contained the signatures of the accused and it was given to the complainant to present in the Bank, presumption under Section 139 is raised. It is for the accused to rebut the presumption by adducing sufficient evidence. In _**Rangappa**_ , it is held that the presumption mandated by S.139 include existence of a legally enforceable debt or liability. This is in the nature of a rebuttable presumption and it is open to the accused to raise a defence, wherein existence of a legally enforceable debt or liability can be contested. 10. The appellant has failed to establish that Ext.P1 cheque was duly executed by the first respondent for a legally dischargeable debt of Rs.5,00,000/-. PW1 has not cared to examine Abdurahiman, who was present at the time of issuance of Ext.P1 cheque. Moreover, he has not adduced any evidence to the effect that ready cash was available with him on the date when the alleged borrowal of cash by the first respondent. It is unbelievable that the appellant has given Rs.5,00,000/- to the first respondent without any documents. So, there is infirmities and inconsistencies in the evidence of PW1 and it is sufficient enough to prove that he has failed to establish that Ext.P1 cheque was issued for a legally dischargeable debt. The court below has analysed the matter in detail and ultimately held that the first respondent is not guilty of the offence and the appellant has failed to establish that Ext.P1 cheque was issued for a legally dischargeable debt. -10- Crl. Appeal No.2158/2008 I do not find any ground to interfere with the judgment of the court below and the appeal is liable to be dismissed. Accordingly, this appeal is dismissed. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. Appeal No.2158/2008 -11-