Nandakumar v. Sundaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 CRL.A.No. 788 of 2001(B) -----------------------CC.891/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT/COMPLAINANT: -------------------------------------------- NANDAKUMAR, S/O. KAYYULLY BALAN NAIR MAMMIYOOR DESOM GURUVAYOOR VILLAGE, CHAVAKKAD TALUK BY ADV. SRI.RAJIT RESPONDENT/ACCUSED: --------------------------------------SUNDARAN, S/O. MARAMKULANGARA ACHUTHAN GURUVAYOOR VILLAGE, DESOM, CHAVAKKAD TALUK ADV. SRI.K.S.BABU SMT.N.SUDHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V.K.MOHANAN, J. ------------------------------- Criminal Appeal No.788 OF 2001 ------------------------------Dated this the 3[rd] November, 2008. ## JUDGMENT Appellant is the complainant in C.C.891/98 on the file of the Judicial Magistrate of First Class, Chavakkad. It is a case instituted upon a private complaint for prosecuting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. As per the impugned judgment the trial court acquitted the accused under Section 255(1) Cr.P.C. It is the above order of acquittal challenged in this appeal. 2. The case of the appellant-complainant is that the complainant and the accused were friends and on 14.9.1997 the accused came to the house of the complainant and borrowed a sum of Rs.85,000/-. According to the complainant the accused failed to repay the amount in spite of repeated demands and finally on 10.11.1997 the accused towards the discharge of the said liability issued a cheque for Rs.85,000/- on the account maintained by him. It is the further case of the complainant that when the above cheque presented for encashment the same was dishonoured for want of Crl. Appeal No: 788/2001 2 sufficient funds. Ext.P1 is the cheque and Ext.P2 is the dishonoured memo dated 7.12.1997. According to the complainant on receipt of Ext.P2 memo he had caused to send a lawyer notice and marked it as Ext.P4 dated 12.12.1998. Complainant produced Exts.P5 and P6 to show the service of Ext.P4 notice on the accused. Thus, even though a formal notice was served on the accused intimating him the dishonour of cheque and demanding payment of the amount, the accused even not cared to send reply to the said notice and the amount was not paid and hence he approached the court by filing the complaint. The court took cognizance upon the complaint and issued process to the accused after instituting C.C. 891/98 and on appearance of the accused the particulars of the allegations were read over to the accused to which he pleaded not guilty, which resulted in further trial during which the complainant was examined as P.W.1. Besides complainant, P.W.s 2 to 4 were examined and Exts.P1 to P12 and P12(a) were marked as documentary evidence. During the statement under Section 313 Cr.P.C the accused denied all the incriminating circumstances came out through the evidence 3 Crl. Appeal No: 788/2001 and he had further added that he had availed some money from one Mythree Kuries and a blank cheque was issued as security for the said transaction. He had no relationship with the complainant. The endorsement seen in the cheque was made by him. On the basis of the pleadings and contentions, appropriate issues were framed by the court below and finally found that the case of the complainant is highly improbable and suspicious and there is bonafides in the contentions of the defence that the accused issued Ext.P1 blank cheque as a security for re-payment of the future subscription of the chitty with the chitty company of which the complainant is a partner. On the basis of the above finding the court held that the complainant has not succeeded in proving the case against the accused beyond reasonable doubt and accordingly the accused is found not guilty and he is acquitted. It is the above finding and order of acquittal that challenged in this appeal. 3. I have heard learned counsel for the appellant as well as the respondent-accused. 4. Going by the evidence of the complainant and the 4 Crl. Appeal No: 788/2001 allegation in the complaint it can be seen that the specific case of the complainant is that the accused borrowed a sum of Rs.85,000/on 14.9.1997 and because of the acquaintance between the complainant and the accused he gave that amount but the same was not re-paid and on repeated demand the accused issued Ext.P1 cheque. As pointed out earlier on dishonour of the cheque he had issued Ext.P4 notice but though accused had received the same, no reply was given. It was in the above circumstances he filed the complaint. Though no reply notice was given to the lawyer notice, when the accused was questioned under Section 313 he took a stand to the effect that the cheque in question was not executed and issued by him to the complainant as claimed by the complainant. But Ext.P1 cheque is the one blank cheque which he entrusted with the financiers when he availed the kuri amount. According to the accused it is the above cheque misused by the complainant for filing the above complaint. Learned counsel for the accused-respondent submitted that mainly for the reason that the complainant is the holder of the cheque which contain the 5 Crl. Appeal No: 788/2001 signature of the accused, it cannot be said that the accused had issued or executed the cheque in favour of the complainant and there is passing of consideration. In support of the above contention the learned counsel very much relied upon the decision of the Apex Court reported in Krishna Janardhan Bhat v. Dattatraya Hegde {2008(1) KLT 425 SC}. Counsel submitted that in order to avail the benefit of Section 139 of the Negotiable Instruments Act the complainant has to establish the execution of Ext.P1 cheque and the passing of consideration and the so called debt etc. According to the learned counsel the complainant has not discharged his initial burden and therefore the accused need not disprove the case of the complainant. 5. Learned counsel for the appellant submitted that the finding of the court below is absolutely baseless and contrary to the evidence and materials on the court. Learned counsel pointed out that when the complainant was examined he had deposed in terms of the complaint and further substantiated the allegation against the accused. Counsel pointed out that even when cross-examining Crl. Appeal No: 788/2001 6 P.W.1 the only suggestion put to the complainant is to the effect that he was a partner of the Mythree Kuries. On the strength of the decision of the Supreme Court in Hiten P. Dalal v. Bratindranath Banerjee {(2001) 6 SCC 16} submitted that mere explanation given by the drawer, although plausible, held would not suffice to discharge the burden of proof to rebut the statutory presumptions. 6. I have carefully considered the contentions advanced by both the counsel and also perused the evidence on record. As indicated above, in the present case the complainant had deposed in terms of the averments contained in the complaint and according to him he parted the amount as loan to the accused as they have acquaintance for more than several years and towards the discharge of the said debt the accused had issued the cheque in question. The complainant had admitted that he is a partner of Mythree Kuries. This Court in the decision reported in Johnson Scaria v. State of Kerala {2006 (4) KLT 290} has held that: “ The burden is always on the prosecution to prove the offence against an indictee in all prosecutions and a prosecution under Section 138 of the Negotiable Instruments Act is no Crl. Appeal No: 788/2001 7 exception to that rule. Execution and issue of the cheque have to be proved to draw the presumption under Section 139 and Section 139 does not shift the burden to prove execution and issue of the cheque. Admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But under Section 114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered.” In the present case the explanation offered by the accused is to the effect that the cheque in question was actually entrusted with Mythree Kuries of which the complainant is a partner and it is the said cheque misused by the complainant. Except ipse dixit of accused there is no materials or evidence on record to show that the accused is a subscriber to any Kuri conducted by the above financiers. As pointed out by the learned counsel for the appellant that the mere suggestion is not sufficient to hold that the drawer of the accused has discharged his burden to rebut the presumption. It is relevant to note that in the present case the complainant has Crl. Appeal No: 788/2001 8 admitted that he is a partner of the firm mentioned above but he further stated that he does not know whether the accused is a subscriber of that financing institution. Therefore, absolutely there is no evidence to show that the accused is a subscriber who availed loan from the Mythree Kuries. When compared with the evidence so far adduced by the complainant and the explanation of the accused it appears to me that accused has not discharged his burden in rebutting the presumption. If the accused is particular and specific on the contention that he had availed loan or he was a subscriber to the Kuri conducted by the Mythree Kuries absolutely there is no evidence to substantiate his claim. In the absence of such materials or evidence from the side of defence and the evidence on the side of the complainant I am of the view that the finding arrived at by the court below is not perfectly correct. It is also relevant to note that merely because the signature of the accused contained in the cheque in question no presumption can be drawn that the cheque was duly executed. 7. In the light of the facts and circumstances and the 9 Crl. Appeal No: 788/2001 discussions, I am of the view that the matter deserved to be remitted back for fresh consideration of the court below with liberty to the parties to adduce evidence to substantiate their respective contentions and after such materials the court can come into a definite conclusion. In Krishna Janardhan Bhat's case (supra) the Apex Court has held that existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act and it merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability. In the very same decision the Apex Court has also held that while considering the question of rebuttal of presumption in cases where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be considered. In Narayana Menon v. State of Kerala {2006(3) KLT 404 SC} the Apex Court has held that for rebutting such presumption what needed is to raise a probable defence. Even for the said purpose the evidence adduced on behalf of the complainant could be relied upon. The standard of 10 Crl. Appeal No: 788/2001 proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. It was for the appellant to discharge initial onus of proof. In the light of the above legal position, I am of the view that by giving liberty to the parties to adduce further evidence in the matter they will be able to substantiate their contentions and the Court can take just and proper decision and thereby render justice to the parties. 8. Accordingly the impugned judgment is set aside. The parties are directed to appear before the Court below on 3.12.2008 on which date the Court is directed to take up the complaint on file and to proceed with the same in accordance with law and dispose it of on merits. Appeal is disposed of accordingly. V.K.MOHANAN JUDGE jj Crl. Appeal No: 788/2001 11 V.K. MOHANAN, J --------------------------CRL. APPEAL NO: 788 OF 2001 --------------------------JUDGMENT DATED: 3[rd] November, 2008