Madhuri Madusoodanan v. P. Mohanakumari and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938** **CRL.A.No. 460 of 2010 ( )** **-------------------------AGAINST THE JUDGMENT IN CRL.APPEAL 990/2006 of ADDITIONAL SESSIONS JUDGE-I, THIRUVANANTHAPURAM DATED 26-08-2009** **PETITIONER/RESPONDENT/COMPLAINANT:** **------------------------------------** **MADHURI MADUSOODANANAN,** **W/O. MADHUSOODANAN, SREENATH, VADAKKUMBHAGOM, VETTU ROAD, KAZHAKKUTTOM, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR** ## **RESPONDENT(S)/RESPONDENTS/ACCUSED & STATE:** **-----------------------------------------** **1. P.MOHANAKUMARI,T.C.76/2125, NEAR ST.ANNIE'S NURSERY SCHOOL, OOLANKUZHI, ANAYARA.P.O., THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SRI.BASANT BALAJI R2 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.460 of 2010 ---------------------------------------------Dated this the 29[th] day of March, 2016 ## **JUDGMENT** This appeal is preferred by the complainant against the judgment in Crl.Appeal No.990/2006 of Additional Sessions Judge-I, Thiruvananthapuram. The complainant filed C.C.No.855/2003 before Judicial First Class Magistrate-I, Attingal u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act) against the accused. The complainant's case in the trial Court is that the accused borrowed a sum of 4,65,000/- from her and in discharge of that₹ debt, he issued Ext.P1 cheque. When it was presented for encashment through Federal Bank, Perumathura branch, it was dishonoured for the reason 'not arranged for'. Complainant demanded the due amount by giving a notice in writing to the Crl. Appeal No.460/2010 2 accused and even after receipt of notice, there was no payment from the side of the accused. In the circumstances, the above complaint was filed in the Judicial First Class Magistrate CourtI, Attingal. 2. During trial, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She examined DW1 and did not adduce any documentary evidence. The learned Magistrate convicted the accused u/s.138 of the N.I. Act and sentenced to imprisonment for three months and compensation of 4,65,000/- , in default₹ simple imprisonment for two months. Being aggrieved by that, she preferred Crl.Appeal No.990/2006 before Additional Sessions Judge-I, Thiruvananthapuram. 3. The learned counsel appearing for the appellant contended that the accused had admitted the issuance of Crl. Appeal No.460/2010 3 Ext.P1 cheque. Therefore, presumption u/s.118 and 139 of the N.I. Act can be drawn in favour of the holder of the cheque. The acquittal of the accused by the appellate Court was without considering the law and evidence, hence that order is to be set aside and restore the conviction of the trial court. 4. In reply to the above contention, the learned counsel appearing for the 1st respondent contended that the source of income has not proved. So, the presumption cannot be drawn in favour of the appellant. 5. According to Section 138 of the N.I. Act, when cheque is 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 account in discharge of a debt or 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 to be paid from that account, such person shall be 4 Crl. Appeal No.460/2010 deemed to have committed an offence punishable u/s.138 of the N.I. Act. Besides the above, the complainant has to prove that the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Secondly, the payee or the holder in due course of the cheque shall make a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within thirty days (subs. For “within fifteen days” by Act 55 of 2002, S.7 (w.e.f.6.2.2003)) of the receipt of information from the bank. If the drawer fails to make a payment of the said amount to the payee within fifteen days of receipt of the said notice, then only the holder can proceed against the accused. 6. In this context, I have considered the oral evidence of PW1, who deposed that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of 'funds insufficient'. Ext.P2 is Crl. Appeal No.460/2010 5 the dishonour memo. Ext.P3 is the cheque returned memo. PW1 demanded the due amount by giving a notice in writing to the accused. Ext.P4 is the copy of the lawyer notice. Ext.P5 is the postal receipt and Ext.P6 is the acknowledgment card. The accused also issued Ext.P7 reply notice. During cross examination, PW1 admitted that she had withdrawn ₹4,65,000/- from her bank account and another 1 lakh was in₹ her custody. The amount was withdrawn from the bank two or three days before the present transaction. Subsequently, she added that 1 lakh was borrowed from her father. Analysing₹ the oral testimony of PW1, it is found that there is no consistent case to show that she has sufficient funds to pay ₹4,65,000/-, when Ext.P1 cheque was received from the accused. 7. Apex Court in **John K Abraham** v. **Simon C. Abraham** [2014(1) KLT 90(SC)] held as follows: “ 9.Keeping the above factors in mind, when we examine the judgment impugned in this appeal, we find Crl. Appeal No.460/2010 6 that the High Court committed a serious illegality in reversing the judgment of learned Chief Judicial Magistrate. While reversing the judgment of the trial Court, what weighed with the learned Judge of the High Court was that in the 313 questioning, it was not the case of the appellant that a blank signed cheque was handed over to his son and that even in the cross -examination it was not suggested to PW -1 that a blank cheque was issued. The High Court was also persuaded by the fact that the appellant failed to send any reply to the lawyer 's notice, issued by the respondent. Based on the above conclusions, the High Court held that the presumption under Sections 118 and 139 of the Negotiable Instruments Act could be easily drawn and that the appellant failed to rebut the said presumption. On that single factor, the learned Judge of the High Court reversed the judgment of the trial Judge and convicted the appellant. It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant. 6.4. According to the respondent, the cheque was in the handwriting of the accused himself and the very next moment he made a contradictory statement that the cheque was not in the handwriting of the appellant and that he (complainant) wrote the same. 6.5. The respondent also stated that the amount in words was written by him. 6.6. The trial Court has also noted that it was not the case of the respondent that the writing in the cheque 7 Crl. Appeal No.460/2010 and filling up of the figures were with the consent of the accused appellant. Therefore, the oral testimony of PW1 that she had sufficient funds at the time of issuance of Ext.P1 cheque was not proved in the trial Court. If such fact was proved, that was a good ground for drawing presumption u/s.118 and 138 of the N.I. Act. But this initial burden was not discharged by the complainant in the trial Court , when she deposed about the source of income. 8. In this context, I have perused the oral testimony of DW1, the accused, who deposed in the trial Court that she is her close relative and she borrowed 50,000/- from the₹ complainant, at that time she entrusted two signed blank cheques to her. Subsequently, she paid 50,000/- to the₹ complainant, but she did not return the cheque leaves. She retained those cheque leaves and by misappropriating one of the cheque leaves, foisted a false case against the accused. Crl. Appeal No.460/2010 8 Another cheque leaf was entrusted to her father, with that cheque he filed another case in the Judicial First Class Magistrate Court, Vanchiyoor. Even though DW1 was cross examined, nothing has been brought out to discredit the oral testimony of DW1. On a close scrutiny of the oral testimony of PW1 and answers given by DW1 in cross examination, it is presumed that the primary responsibility in discharging about the source was not properly stated by the appellant in the trial Court. If that be the position, there is a serious lacuna in the evidence of PW1, which strikes at the root of a complaint u/s.138 of the N.I. Act. When complainant fails to produce the bank document to prove that she had sufficient funds for advancing the amount to the accused and from that, she withdrawn the amount, the conclusion reached by the appellate Court is only to be upheld. Analysing the legal infirmities connected with the case, I am of the opinion that the appellate Court rightly analysed the Crl. Appeal No.460/2010 9 oral and documentary evidence and acquitted the accused. I do not find any reason to interfere in this matter. Therefore, there is no merit in this appeal and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd # Crl. Appeal No.460/2010 10