M. Rajagopalan v. State of Kerala and Mohammed Basheer K.S. (CRL.A NO. 1145 OF 2018)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 23[RD] DAY OF MAY 2023 / 2ND JYAISHTA, 1945 ``` ``` CRL.A NO. 1145 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 08.02.2018 IN S.T NO.37/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, OTTAPALAM ``` ## **`APPELLANT/COMPLAINANT:`** ``` M. RAJAGOPALAN, AGED 61 YEARS, S/O.KUNJIRAMAN NAIR, MELAVEETTIL (H), PANNIYAMKURISSI P.O., CHERPULASSERY, OTTAPALAM TALUK. ``` ``` BY ADVS. S. SUNIL MAURYAN P.PREMAN ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2MUHAMMED BASHEER K.S, S/O.MUHAMMED KUTTY K., AGED 37 YEARS, KARINKAMTHODI (H), CHERUPULASSERY POST, OTTAPALAM, TALUK, (WITHIN CHERUPULASSERY POLICE STATION LIMIT), PIN CODE-679 503. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 23.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1145 OF 2018 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 23[rd] day of May, 2023.** Judgment passed by Judicial First Class Magistrate Court-II, Ottapalam (for short, ‘the trial court’) on 08.02.2018 in S.T No.37 of 2017 is under challenge in the appeal on hand. The appellant is the complainant in the above prosecution. S.T No.37 of 2017 is a prosecution launched by the appellant herein, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘N.I Act’). 2. The trial court after holding a Summary Trial in the case held that the complainant failed to establish execution of the cheque and acquitted the accused under Section 255(1) of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’) for the offence punishable under Section 138 N.I Act. The aggrieved complainant has approached this Court in the appeal on hand. ``` CRL.A NO. 1145 OF 2018 ``` ``` 3 ``` 3. The parties to this appeal will hereinafter be referred to as the complainant and the accused in accordance with their status before the trial court. 4. The facts of the case relevant for disposal of the appeal are narrated hereinbelow in a nutshell; 5. A sum of `1,00,000/- was borrowed by the accused from the complainant and in discharge of the above said liability, a cheque bearing No.2110 dated 13.11.2013 drawn from Vallapuzha Service Co-Operative Bank Ltd, Nellaya Branch was issued to the complainant. The cheque was presented for encashment but was returned dishonoured for insufficient funds in the account maintained by the accused. A memo of dishonour dated 20.11.2013 was issued to the complainant. The complainant sent a registered lawyer notice to the accused on 25.11.2013 intimating him the factum of dishonour of the cheque for insufficiency of funds and calling upon him to pay the amount covered by the cheque, but was returned unserved stating ‘not known’. ``` CRL.A NO. 1145 OF 2018 ``` ``` 4 ``` 6. According to the complainant, the accused by influencing the Postman, had deliberately caused the notice to return unserved. According to him, the address of the accused found in the copy of the driving licence available with him is the same address in which the statutory notice was issued to him. Since the amount borrowed was not repaid by the accused, a complaint was filed under Section 142 N.I Act to launch the prosecution under Section 138 N.I Act. 7. Accused entered appearance on summons issued from the trial court being served on him. He was granted bail and furnished with copies of the relevant records. The particulars of the offence were read over to him and he pleaded not guilty. The complainant got himself examined as PW1 and Exts.P1 to P6 were marked. 8. On closure of the evidence of the complainant, the accused was questioned under Section 313(1)(b) Cr.P.C. with reference to the incriminating circumstances brought out by the complainant in evidence against him. All the incriminating circumstances put to him during examination were denied by ``` CRL.A NO. 1145 OF 2018 ``` the accused and maintained a stand of total innocence. In a separate written statement filed, it was contended that a signed blank cheque of him was misused by the complainant and the prosecution in question was launched. Thereafter, he was asked to enter on his defence, but did not adduce any evidence. 9. The following points were raised by the trial court for consideration:- - “1. Whether the complainant has complied with all the statutory formalities prescribed under the Act? 2. Whether Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt? 3. Whether Ext.P1 cheque was returned dishonoured for want of sufficient funds in the account maintained by the accused? 4. Whether the accused has committed an offence punishable u/s 138 of the Act? 5. If so, what is the order as to sentence?” 10. The trial court considered all points together and answered it against the complainant and on the basis of those, it found the accused not guilty of the offence alleged to have been committed by him under Section 138 N.I.Act and acquitted him under Section 255(1) Cr.P.C. ``` CRL.A NO. 1145 OF 2018 ``` ``` 6 ``` 11. The learned counsel for the complainant has canvassed for a reversal of the judgment mainly for three reasons. The first argument advanced was that the trial court found that the mandatory requirement under clause (b) of proviso to Section 138 NI Act was not complied with by the complainant by failing to serve a notice on the accused after the cheque was bounced and returned to him. According to him, a notice was issued but, it was returned for the reason ‘addressee not known’. According to him, the trial court found in the above circumstances that the statutory notice envisaged under the NI Act was not served on the accused. Though copy of the driving licence was produced by the complainant to contend that notice was served in the address of the complainant incorporated there and therefore, notice was taken for service in his correct address. But, the trial court discarded his argument and held that the complaint is defeated for non-service of notice. 12. The second argument raised was that in the affidavit filed by the complainant in lieu of examination in chief, the ``` CRL.A NO. 1145 OF 2018 ``` ``` 7 ``` details of the transaction were not stated. The argument thirdly advanced was that the complainant failed to plead in the complaint as well as in the proof affidavit that the disputed cheque was executed by the accused. 13. An argument was also advanced based on the suggestion put by the accused to the complainant that the ink by which the entries were filled and signature was affixed in Ext.P1 are different. The trial court held that the entries and the signature were put not by the accused in the presence of the complainant as stated by him and found that the complainant failed to prove the execution of Ext.P1. According to him, the issuance of the disputed cheque in a signed form having been admitted by the accused, he can only be taken to have admitted the transaction and then the onus is shifted to the accused to rebut the presumption that would be attracted in favour of the complainant under Section 139 N.I.Act. According to him, based on a mere challenge raised by the accused on the execution of the cheque, the trial court cannot abstain from accepting the testimony of the complainant, which is reliable in ``` CRL.A NO. 1145 OF 2018 ``` all other respects, to hold that there is due execution of the cheque. According to him, when the oral evidence tendered by the complainant regarding execution of the cheque is found credible, there is absolutely no necessity to seek for corroboration from any independent source. According to him, the execution of the cheque having been duly established from the version of the complainant as PW1 itself, the trial court ought not to have sought for corroboration from independent source. Rather, it ought to have placed reliance on it to hold that execution of the cheque is proved. The finding of the trial court that for failure of the complainant to state the date of the transaction and to examine any witness to the execution, the complaint is defeated is totally an erroneous one. According to him, the complainant during cross examination has specifically stated the date of the transaction and therefore the trial court was erred in taking a view that the execution of the cheque is not duly proved by him and thereby to acquit the accused. 14. In the proof affidavit filed by the complainant in lieu of chief examination, all his averments in the complaint were ``` CRL.A NO. 1145 OF 2018 ``` ``` 9 ``` reiterated. According to him, the accused had borrowed a sum of `1,00,000/- from him and to discharge that debt, Ext.P1 cheque dated 13.11.2013, drawn from Vallapuzha Service Cooperative Bank Ltd., Nellaya Branch, was issued. The cheque on presentation before the bank for encashment was returned bounced for want of sufficient funds in the account maintained by the accused. A memo of dishonour was also issued by the bank which is marked in evidence as Ext.P2. On 25.11.2013, a lawyer notice was sent by the complainant to the accused intimating him about the dishonour of the cheque and demanding repayment of the amount covered by the cheque within 15 days of receipt of it. It was also averred that statutory notice issued by the complainant in the correct address was caused to be returned by the accused and the unserved notice is marked in evidence as Ext.P4. 15. During cross examination of the complainant, questions were put to the effect that the cheque given as security was retained, despite making repayment of the debt, that it was presented for encashment after causing material ``` CRL.A NO. 1145 OF 2018 ``` ``` 10 ``` alterations in it and that it was misused for launching the prosecution. But, those were outrightly denied by him. Suggestion was also put that statutory notice was not served on the accused, but he denied that also. On the strength of the dictum in **Divakaran K.K Vs. State of Kerala and Another** [2016 (4) KLT 233] relied on by the learned counsel for the complainant, the trial court has also found that nonmentioning of the particulars of the transaction viz., the date of demand of the amount by the accused, the date of borrowal of the amount, the date of issuance of the cheque, in the complaint would amount to suppression of those by the complainant and that is more than sufficient to treat the prosecution as failed and to order acquittal of the accused. The trial court further held that notice being returned ‘not known’, statutory notice as contemplated under the N.I.Act cannot be taken as served on the accused and for that reason also the prosecution is defeated. The trial court observed furthermore that the complainant failed to state in the complaint as well as in the proof affidavit, the exact time at which the cheque was ``` CRL.A NO. 1145 OF 2018 ``` ``` 11 ``` executed and whether it was, in his presence. The only pleading incorporated in the complaint was that the cheque was handed over by the accused to him. Though the transaction was stated as witnessed by a person, he was not examined. Trial court found force in the argument of the learned counsel that the ink by which the entries in the cheque were filled and the signature was affixed was different. Accordingly it held that the complainant failed to prove his case beyond reasonable doubt. 16. In the case on hand, complainant has categorically deposed before the trial court by stating the relevant aspects of the case strictly in tune with the averments in the complaint. Cross examination of the complainant by the defence did not bring out any material aspects, liable to discredit his version. The dictum in **Divakaran** supra relied on by the trial court to treat the complaint as unsustainable on failure to narrate the details of the transaction was held not good law by a Division Bench of this Court in **Basheer v. Usmankoya** [2021 (2) KLT 567]. In a prosecution under Section 138 N.I. Act, the ``` CRL.A NO. 1145 OF 2018 ``` ``` 12 ``` ## complainant is required to establish only the following aspects :- “1. Cheque should have been issued for the discharge, in whole or part, of any debt or other liability. 2. The cheque should have been presented within the period of six months or within the period of its validity, whichever is earlier. 3. The payee or the holder in due course should have issued a notice in writing to the drawer within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. 4. After the receipt of said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice. 5. On non-payment of the amount due on the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days, before a Metropolitan Magistrate or not below the rank of a Judicial Magistrate of the First Class. The cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.” 17. When the above ingredients are established by ``` CRL.A NO. 1145 OF 2018 ``` ``` 13 ``` evidence, the prosecution is only to succeed. In the case on hand, the complainant undoubtedly has successfully established the requirements relevant for sustaining the prosecution. 18. True that statutory notice issued to the accused was returned with endorsement ‘not known’. It is pertinent to note that the photocopy of the driving licence of the accused is produced and marked in evidence as Ext.P6, without its legality or propriety being objected to by the accused. 19. The learned counsel urged on the basis of the address found in Ext. P4, the returned cover containing the notice and the one available in the cause title of the complaint that the address is one and the same. Therefore, there is every reason to hold that notice was taken for service to the accused in his correct address, but due to his evasion, it was returned. If a notice was sent and the address in which it was sent is established as the correct one, there is every reason to hold that notice was properly served. It is pertinent to note that in the very same address in which notice was sent, process was served ``` CRL.A NO. 1145 OF 2018 ``` ``` 14 ``` on the accused from the trial court as well as this Court and the accused appeared on receiving it. Therefore, the trial court has gone wrong in taking a view that the complainant failed to serve the statutory notice on the accused. ## 20. In **Bir Singh v. Mukesh Kumar** , the Apex Court held that : “38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section ``` CRL.A NO. 1145 OF 2018 ``` ``` 15 ``` 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.” 21. In the case on hand, the complainant has satisfactorily established by his uncontroverted evidence as PW1 that the accused had borrowed a sum of `1,00,000/- from him and Ext.P1 was issued to him by the accused to discharge the said monetary liability. Ext.P1 was also admittedly issued by the accused. 22. Therefore, as held by the Apex Court in **Bir Singh** supra, the presumption under Section 139 NI Act would be attracted in favour of the complainant that the cheque was issued for discharging a valid debt or liability. Evidence has not come on record to take a view that the debt or liability established by the complainant as owed by the accused to him was not a legally enforceable debt or liability. In that context, the complainant can be taken to have discharged his initial burden to establish that Ext.P1 was issued by the accused to him towards discharge of a legally enforceable debt or liability. ``` CRL.A NO. 1145 OF 2018 ``` ## **`16`** ## 23. Paragraph 23 of **Bir Singh** (supra) being relevant is extracted hereunder:- `“` 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal (supra).” 24. It is clear from the above extract that the presumption that would be attracted in favour of the complainant would remain, unless the contrary is proved by the accused. Therefore, the onus lie on the accused to rebut the presumption and it can be discharged by him either by ``` CRL.A NO. 1145 OF 2018 ``` ``` 17 ``` bringing in preponderance of probabilities in the version of the complainant so as to make him disbelieve or else to adduce positive evidence to establish on the contrary. 25. A scrutiny of the evidence that has come in cross examination of PW1 revealed that the accused has thoroughly failed to bring in doubtful circumstances to discredit the version of the complainant. The accused even failed to adduce any positive evidence liable to establish on the contrary. 26. Only a suggestion was found put to the complainant that Ext.P1 was issued as security while borrowing `1,00,000/and in spite of the repayment of that amount, the cheque given was retained and the prosecution was launched by misusing it after making material alterations in it. The said suggestion was denied by the complainant. Therefore, the accused undoubtedly failed to rebut the presumption under Section 139 NI Act. The complainant was also alleged as materially altered Ext.P1, by pointing at the difference in the ink by which the entries in it were filled up and the signature was affixed. The Apex Court in **Bir Singh** supra has held that in case of ``` CRL.A NO. 1145 OF 2018 ``` ``` 18 ``` voluntary issuance of Ext.P1 by the accused, the difference in ink by which the entries were filled and the signature was put, would not amount to material alteration. 27. The dictum of the Apex Court is extracted hereunder for convenient reference: “37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular Section 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Xxxxxx ``` CRL.A NO. 1145 OF 2018 ``` ``` 19 ``` ## xxxxxx 42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellantcomplainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration.” 28. In the light of the above discussion, this Court has no hesitation to take a view different from that taken by the trial court. The appeal succeeds for the reason. In the result, the appeal is allowed. The judgment under challenge is reversed. The complainant is taken to have discharged his initial burden satisfactorily and the accused failed to discharge his onus to rebut the presumption. The accused, therefore, is found guilty for the offence under Section 138 N.I. Act and convicted and sentenced to undergo imprisonment till rising of the court and to pay fine of `1,00,000/- and in default, to undergo simple imprisonment ``` CRL.A NO. 1145 OF 2018 ``` for four months. It is also directed that the amount of fine on deposit, shall be disbursed as compensation in favour of the complainant under Section 357(1) (b) (Cr.P.C). **`Sd/-` MARY JOSEPH** **JUDGE** JJ