K.M. Hashim Shajithan Manzil v. Beevathukutty W/o Kabeer and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942** ## **CRL.A.No.517 OF 2005** **AGAINST THE JUDGMENT IN CC 204/2002 DATED 31-12-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI** ## **APPELLANT/COMPLAINANT:** **K.M.HASHIM SHAJITHA MANZIL,MUTHUVATHOOR, CHAVAKKAD 680 506.** ## **BY ADV. SRI.K.RAMACHANDRAN** ## **RESPONDENTS/ACCUSED & STATE:** - **1 BEEVATHUKUTTY W/O.KABEER, PILAKKA VEEDU, MUTHALAKULANGARA, VALIYAKATH KARAKKADU, PUNNAYOORKULAM DESOM,, CHAVAKKAD, THRISSUR DISTICT.** - **2 THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **R1 BY ADV. SRI.BABU S. NAIR R2 BY SR.PUBLIC PROSECUTOR SRI. SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.517/2005 2 ## **P.V.KUNHIKRISHNAN, J.** ## **--------------------------------------** Crl.Appeal No.517 of 2005 **---------------------------------------** Dated this the 26[th] day of May, 2020 ## **JUDGMENT** The above appeal is filed by the complainant in C.C.No.204 of 2002 on the file of the Judicial First Class Magistrate Court-I, Kochi. The first respondent herein is the accused in the above case. The appellant filed the above case against the first respondent for prosecuting him under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused issued a cheque bearing No.575392 for Rs.6,00,000/- in favour of the complainant on 31.8.2001 to discharge a debt due to him. When the cheque presented before the drawee Bank, it was dishonoured with the reason ‘funds insufficient’. The accused replied to the notice on 30.1.2002 stating false things. According to the complainant, the accused did not pay the amount. Hence the complaint is Crl.A.No.517/2005 3 filed. 3. The prosecution examined the complainant himself as PW1. Ext.P1 to P4 are the Exhibits. On the side of the defence, DW1 to DW3 are examined. Exts.D1 to D8 are the documents marked by the defence. Ext.X1 is also marked, which is the certified copy of the ledger extract. 4. After going through the evidence and the documents, the lower court found that the complainant miserably failed to prove the case against the accused. Hence, the accused was found not guilty under Section 138 of the Negotiable Instruments Act and he was acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the above acquittal order, the present appeal is filed. 5. Heard the learned counsel for the appellant and the learned counsel appearing for the first respondent. 6. The learned counsel for the appellant submitted that the complainant proved the case beyond reasonable doubt. According to the counsel, the execution of the Crl.A.No.517/2005 4 cheque is proved. The transaction is proved. In such circumstances, there is a presumption in favour of the complainant. The learned counsel for the complainant submitted that the accused was not able to rebut the presumption under Section 139 of the Negotiable Instruments Act. The learned counsel for the appellant submitted that huge amount is due to the complainant and the complainant produced unnecessary documents and evidence before the court below to confuse the court. Since there is a presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act, according to the counsel, the accused is liable to be convicted and sentenced under Section 138 of the Negotiable Instruments Act. According to the counsel, the accused is liable to be convicted and sentenced under Section 138 of the Negotiable Instruments Act. The counsel also produced the judgment of this Court in **Bhaskaran.A.K. v. K.G.Sheeba and another (2020 (1)** Crl.A.No.517/2005 5 **KHC 59)** to contend that dishonour of a cheque issued by the wife as a guarantor in discharge of liability of husband is also a cheque which is issued in discharge of a debt or liability. In such case, the presumption under Section 139 of the Negotiable Instruments Act is attracted. The counsel also produced the judgment of the Apex Court in **Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. (2016 (4) KHC 951)** to contend that, dishonour of a post dated cheque given for repayment of loan instalment which is also described as “security” is covered by Section 138 of the Negotiable Instruments Act. The Apex Court held that, a post dated cheque is a well recognised mode of payment. The counsel submitted that, in the light of the above judgment, the accused is liable to be convicted under Section 138 of the Negotiable Instruments Act. 7. The counsel for the accused supported the judgment of the learned Magistrate. The counsel for the Crl.A.No.517/2005 6 accused submitted that, no legally enforceable debt is there and the cheque issued in connection with another transaction was misused by the complainant in this case. He submitted that, the evidence adduced by the defence will prove that the cheque was issued without consideration. He submitted that the learned Magistrate perfectly appreciated the evidence adduced in this case and acquitted the accused. There is nothing to interfere in this case. 8. After hearing both sides, I think there is force in the contention of the counsel for the accused. The ingredients of Section 138 of the Negotiable Instruments Act are to be proved by the prosecution. The presumption will attract only if the basic ingredients of the offence are proved. Section 138 of the Negotiable Instruments Act says that, where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person from out of that Crl.A.No.517/2005 7 account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person is liable under Section 138 of the Negotiable Instruments Act. To attract the presumption under Section 139 of the Negotiable Instruments Act, the fundamental ingredients of Section 138 of the Negotiable Instruments Act are to be proved. 9. In **APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers [2020 (2) KLT 21 (SC)]** , the Apex Court held that, whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the Negotiable Instruments Act, the onus shifts again on the complainant to prove his financial Crl.A.No.517/2005 8 capacity and at that stage the complainant is required to lead evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. The relevant portion of the above judgment is extracted herein below : _“We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the Negotiable Instruments Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque.”_ 10. In the light of the above judgment, if the financial capacity of the complainant is questioned by the accused, the burden shift to the complainant to prove the same. In this case the accused challenged the financial capacity of the complainant. Complainant deposed that, Crl.A.No.517/2005 9 Rupees Six Lakhs paid to the accused in this case was shown in his income tax return. According to him, this was shown as the amount given to the husband of the accused. In such circumstances, the accused filed a petition to call for the income tax return of the complainant. His petition was objected by the complainant contending that, it is not relevant in the case. But the learned Magistrate issued a direction to produce the income tax return. Then the complainant filed an affidavit saying that the income tax return is not in his possession. Such an explanation from the complainant cannot be accepted. The learned Magistrate rightly found that this fact will prove an adverse inference against the complainant as per Section 114(g) of the Indian Evidence Act. 11. In this case the accused questioned the financial capacity of the complainant to give an amount of Rs.6,00,000/-. When the same was questioned, the Crl.A.No.517/2005 10 complainant admitted that the same is entered in his income tax return. When the court directed to produce the same, the complainant turn around and said that the income tax return is not in his possession. Even if the income tax return is misplaced, there are other ways to prove that the amount of Rs.6,00,000/- is shown in the income tax return of the complainant. The complainant failed to produce any documents. In such circumstances, on this point alone, the accused is entitled acquittal. The other points raised by the appellant need not be considered without the proof of source of the complainant to lend this much amount. 12. At this stage, the counsel for the appellant submitted that, he may be given an opportunity to produce the income tax return now by remanding the matter to the lower court. I cannot agree with the submission of the learned counsel. The complaint was filed in 2002. During trial, the learned Magistrate directed to produce the income Crl.A.No.517/2005 11 tax return and at that stage, the complainant filed an affidavit stating that, it is not in his possession. Thereafter, as per the judgment dated 31.12.2004, the learned Magistrate acquitted the accused and in the judgment, the learned Magistrate observed that non production of the income tax return of the complainant can be taken as an adverse inference against the complainant as per Section 114(g) of the Evidence Act. Thereafter, challenging the acquittal order, the complainant filed a Special Leave Application before this Court on 7.3.2004. Along with the Special Leave Application, the income tax return is not produced. When the special leave was granted, the appellant filed the appeal on 11.3.2005. At that time also the income tax return was not produced. Now about 15 years elapsed. 13. Today when the matter is taken up for hearing, the counsel for the appellant submitted that he may be given an opportunity to adduce further evidence by Crl.A.No.517/2005 12 remanding the matter to the lower court. Such a contention cannot be accepted at this stage. The financial capacity of the complainant is challenged by the accused during trial itself. The complainant was not able to produce the admitted documents to prove his financial capacity. In such circumstances, it can be safely concluded that the complainant failed to prove the case against the accused. Of course, the learned Magistrate considered the defence evidence and after appreciating the defence evidence, that was also taken as a ground for acquittal. The counsel for the appellant submitted that the finding of the trial court based on the defence evidence is not correct. Even if the defence evidence is not acceptable, the complainant has to stand on his own leg to establish the offene under Section 138 of the N.I.Act. In this case, the complainant miserably failed to prove his source/financial capacity to raise an amount of Rs.6,00,000/-. In such circumstances, there is nothing to interfere with the order of acquittal passed by Crl.A.No.517/2005 13 the learned Magistrate. Hence this appeal is dismissed. The order dated 31.12.2004 in C.C.No.204 of 2002 on the file of the Judicial First Class Magistrate Court-I is confirmed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** csl