K.N. Sivadas v. K.U. Abdul Majeed and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938** **CRL.A.No. 1351 of 2009 ( ) --------------------------CC 1889/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI Crl.L.P. 522/2009 of THIS HONOURABLE COURT -----------** **APPELLANT(S)/COMPLAINANT :** **------------------------** **K.N. SIVADAS, AGED 63 YEARS, S/O. LATE K.A. NARAYANAN, KALAPURAKKAL HOUSE, HOUSE NO. 11/647, KADAYABHAGAM, PALLURUTHY, KOCHI 682 006.** **BY ADVS.SRI.P.VISWANATHAN SRI.K.V.VINOD** **RESPONDENT(S):** **--------------** **1. K.U. ABDUL MAJEED, S/O. K.M. USMAN, 11/283, NEAR AMARAVATHY BUS STOP, K.B. JACOB ROAD, KOCHI-01.** **2. STATE OF KERALA,REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.T.K.PANKAJASHAN PILLAI BY ADV. SRI.SAJI PANKAJAKSHAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl. Appeal No.1351 of 2009 ````````````````````````````````````````````````````````````` _Dated this the 10[th] day of June, 2016_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Challenging the judgment of acquittal passed by the Judicial First Class Magistrate's Court-II, Kochi, in CC No.1889/2006, the complainant before the court below has come up in appeal. The case before the court below is as a result of a private complaint filed by the appellant herein as complainant, against the 1[st] respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused had borrowed an amount of ₹2 lakhs from the complainant and that in discharge of the said liability, the accused had Crl.A.1351/2009 : 2 : issued Ext.P1 cheque to the complainant. The said cheque, when presented, returned dishonoured for insufficiency of funds in the accounts of the accused. Ext.P3 demand notice was caused to be issued by the complainant. The accused, having received the notice, issued Ext.P5 reply thereby setting forth false and untenable contentions and hence, the complaint. 3. On the side of the complainant, PW1 was examined and Exts.P1 to P5 were marked. On the side of the accused, the accused himself was examined as DW1. The court below found the accused not guilty of the offence punishable under Section 138 of the NI Act and acquitted him under Section 255(1) Cr.P.C. 4. Heard learned counsel for the appellant and learned counsel for the 1[st] respondent. 5. The learned counsel for the appellant has argued that the court below has acquitted the accused without any Crl.A.1351/2009 : 3 : valid reasons. It has been pointed out that even though Ext.P5 reply notice was issued, the 1[st] respondent as DW1, had made a total denial before the court below. It is also argued that the court below has lost sight of the presumptions available to the complainant under Sections 118(a) and 139 of the NI Act. It has been further argued that the court below has found fault with the complainant in not producing the acknowledgment card before the court below. According to the learned counsel for the appellant, when Ext.P5 reply was issued by the accused in his own handwriting, the non-production of the acknowledgment card is not at all fatal. 6. _Per contra_ , the learned counsel for the 1[st] respondent has argued that the complainant has not proved the execution of the cheque in question and when the execution has been denied, the burden is on the complainant to prove the execution. It is also argued that Crl.A.1351/2009 : 4 : only when execution is proved, the question of presumptions under Sections 118(a) and 139 of the NI Act will come into play. It is also argued that the lapses on the part of the accused cannot be made use of by the complainant to fill up the lacuna in the case of the complainant. By citing the decisions in _**Bhaskaran Nair v. Mohanan** [2009 (3) KLT 580]_ and _**Jose v. Joy** [2008 (3) KLT 512]_ , the learned counsel for the 1[st] respondent has argued that there are no materials in this case to invite the presumptions under Sections 118(a) and 139 of the NI Act. 7. It is true that the appellant has not produced the postal acknowledgment card in order to show that the accused had received the notice and the date on which the accused had allegedly received the notice. Therefore, according to the court below, when the postal acknowledgment card was not produced, the period of limitation could not be reckoned. Strangely enough, the Crl.A.1351/2009 : 5 : accused has no case that the complaint was filed prematurely or belatedly. When there is no such contention, it is not the headache of the court below to decide that question. If as a matter of fact, no notice was issued as contemplated under Section 138(b) of the NI Act, a cause of action would not arise. Here in this particular case, Ext.P5 reply notice was issued by the accused himself in his own handwriting. 8. It is true that when the accused mounted the Box and deposed as DW1, he had gone to the extent of stating that he had never received any notice caused to be issued by Sivadasan (appellant herein). In chief examination, he deposed that he had never issued any reply to the notice caused to be issued by the appellant. In cross-examination, when Ext.P5 was shown to him, he admitted his signature in Ext.P5. The writings in Ext.P5, the name written by him in it and his signature clearly reveal that Ext.P5 was written in Crl.A.1351/2009 : 6 : the handwriting of the accused himself. When he has unnecessarily denied Ext.P5 in chief examination as DW1, the versions of the accused can only be viewed with suspicion. 9. In Ext.P5, the accused has pretended that he did not know the complainant. He contended that he had issued a blank signed cheque leaf to one Mohanan, who is one of his neighbours as security, when he had borrowed an amount of ₹1,20,000/- from the said Mohanan. His case is that the said Mohanan had handed over the cheque to the complainant. At the same time, in his chief examination as DW1, he has deposed that two cheques were issued to the said Mohanan when he had borrowed an amount of ₹1,20,000/- from him and he did not know whether the said Mohanan had handed over the cheque to the complainant. Even though he has deposed that he did not know the complainant, he deposed that he knew 'the complainant's Crl.A.1351/2009 : 7 : brother Mohanan'. The versions of DW1 are not at all believable. The accused has no consistent contention at all. The denial of execution of Ext.P1 by the accused cannot be believed. 10. The complainant as PW1 has filed a detailed affidavit in lieu of chief examination. He was subjected to cross-examination at length. He has admitted that Mohanan is his younger brother. Admittedly, Mohanan is the neighbour of DW1. The version of DW1 that he did not know anything about the complainant cannot be believed. 11. In the decision in _**Bhaskaran Nair** (supra)_ relied on by the learned counsel for the 1[st] respondent, the case of the accused was that two cheques were issued to the son of the complainant and one of such cheques was misused by the complainant. The facts of the case have no similarity at all with the facts of the present case. In _**Jose** (supra)_ , it was held that even the silence of the accused in the matter will Crl.A.1351/2009 : 8 : not come to the rescue of the complainant to invite the presumptions and to avail the benefit of the presumptions under Sections 118(a) and 139 of the NI Act. Here, there is no silence from the part of the accused. Instead of silence, the accused had made eloquence by issuing a false reply and also by uttering falsehood before the court below as DW1. In such a case, it cannot be said that the materials placed by the complainant before the court below are not _prima facie_ materials to invite the presumptions under Sections 118(a) and 139 of the NI Act. It seems that in this particular case, the complainant has successfully brought out materials enabling him to avail the benefit of the presumptions under Sections 118(a) and 139 of the NI Act. 12. At the same time, there are some infirmities in the case of the complainant. The cheque was dishonoured for the reasons namely, “exceeds arrangement/account closed/transferred to PB account”. It is an aspect that has Crl.A.1351/2009 : 9 : to be proved by the complainant to sustain an offence under Section 138 of the NI Act, that the cheque was issued from a live account kept by the accused. In case the accused had managed to close the account and thereafter, to issue the cheque in question, it would not invite an offence under Section 138 of the NI Act. Of course, it would invite other offences under the Indian Penal Code. That is not a case wherein the Bank had voluntarily closed the account without the knowledge and consent of the accused. If the account was closed by the Bank without the knowledge and consent of the account holder, and the account holder without knowing that the account was closed, issues a cheque, in such case, an offence under Section 138 of the NI Act will lie. Therefore, it is an aspect that has to be proved by the complainant whether the cheque was issued by the accused after the account was closed by the accused himself. In this particular case, the concerned officer or Manager of the Crl.A.1351/2009 : 10 : Bank was not examined. The statements of accounts as per the Banker's book were not produced and proved. It is the duty of the complainant to prove that there were no sufficient amounts in the accounts of the accused for honouring the cheque. In such a case, the complainant ought to have examined one of the officials of the concerned Bank. 13. The court below has stated that the complainant has failed to prove that Ext.P1 cheque was issued from the accounts of the accused. Even the accused has no such case that the cheque in question was not issued from his accounts. It is the case of the accused that he had issued the blank signed cheque leaf to Mohanan. The court below has also found that the accused has denied his signature in the cheque. It is true that when examined as DW1 in cross-examination, the accused has denied his signature in Ext.P1. That is of no consequence at all, when he had unequivocally admitted that he had issued the same as a Crl.A.1351/2009 : 11 : blank signed cheque leaf to Mohanan. When he has admitted in Ext.P5 that he had issued such a blank signed cheque leaf to Mohanan, that is the end of it. He cannot not presently dispute his signature. Moreover, he has no explanation as to how a cheque leaf from his account came to the hands of the complainant. 14. For the limited purpose of proving that the account was not closed by the accused on his on volition or that the account was closed by the Bank without the knowledge and consent of the accused, and also that the cheque in question was issued by the accused when the account was not closed by the accused and also to prove that there were no sufficient funds in the accounts of the accused to honour the cheque as on the date of its presentation, an opportunity has to be given to the present appellant. The impugned judgment passed by the court below are devoid of merits and the same is liable to be set Crl.A.1351/2009 : 12 : aside. In the result, this Criminal Appeal is allowed in part by setting aside the impugned judgment and by remitting the matter to the court below for giving an opportunity to the appellant, as aforesaid, to prove the points noted in paragraphs 12 to 14 above. Of course, it is open to the accused also to adduce further evidence on those points, if so advised. The parties shall appear before the court below on 07.07.2016. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/10/06 _// True Copy //_ _PA to Judge_