N.A.SASIDHARAN S/O.APPU VIADHYAR v. P.B.RAGESH and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 11[TH] DAY OF JUNE 2021 / 21ST JYAISHTA, 1943** **CRL.A NO. 524 OF 2015** **AGAINST THE JUDGMENT IN CC 419/2008 OF JUDICIAL MAGISTRATE OF FIRST** ## **CLASS, CHAVAKKAD, THRISSUR** ## **APPELLANT/COMPLAINANT:** **N.A.SASIDHARAN S/O.APPU VIADHYAR, NEDIYEDATH HOUSE, MANATHALA VILLAGE, DESOM, P.O.CHAVAKKAD, THRISSUR DISTRICT.** **BY ADV SMT.TULASI PANICKER** ## **RESPONDENTS/ACCUSED AND STATE:** - **1 P.B.RAGESH S/O.BALAN,PODIYADA HOUSE, PARAKKAD DESOM, ELAVALLY P.O., MATTOM, THRISSUR.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV SRI.DILIP J. AKKARA R2 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZE** **THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 26.03.2021, THE COURT ON 11.06.2021, DELIVERED THE FOLLOWING:** Crl.A.524/2015 2 ## **JUDGMENT** Appellant is the complainant in a proceedings under Section 142 of the Negotiable Instruments Act, hereinafter referred to as the Act, instituted before the Judicial First Class Magistrate Court, Chavakkad, alleging offence punishable under Section 138 of the Act. By judgment dated 25.07.2014, the contentions of the appellant were rejected and the 1[st] respondent/accused was found not guilty and acquitted under Section 255(1) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C. 2. According to the appellant, on 10.04.2007, the 1[st] respondent/accused approached him at his residence in Manathala desom and borrowed a sum of Rs.1,00,000/-, promising to repay the sum on demand. When the amount was demanded back, on 01.11.2007, he handed over a cheque, bearing No.701559 dated 01.11.2007, drawn on Guruvayur branch of the Punjab National Bank. That transaction also took place at the residence of the appellant. He was made to believe that there was sufficient amount in the account of the respondent. On Crl.A.524/2015 3 02.11.2007 the cheque was presented for encashment through Chavakkad branch of the Canara Bank, but it returned dishonoured with the endorsement 'funds insufficient'. Thereafter, the 1[st] respondent made lame excuses and then the appellant caused to issue a lawyer notice on 21.11.2007, which was served on 23.11.2007. But the 1[st ] respondent sent a reply with false contentions and failed to pay the amount and that prompted him to institute a complaint alleging offence punishable under Section 138 of the Act. 3. After making necessary verifications, the court took cognizance of the offence and summoned the 1[st] respondent. When particulars of the offence were read over and explained, the respondent pleaded not guilty. Thereafter the appellant gave evidence as PW1. Exts.P1 to P7 were also marked. On conclusion of evidence when examined under Section 313(1) (b) of the Cr.P.C., the 1[st] respondent denied all the incriminating materials. He also filed a statement reiterating that he had not borrowed any money from the appellant/complainant on 10.04.2007. According to him, Ext.P1 cheque was not issued by him to the complainant; he has no acquaintance with the complainant; he had no transaction with the complainant. He was Crl.A.524/2015 4 in joint ownership of a Tempo Traveller bearing registration No.KL-8Q-1287 with one Surendran, son of Sankaran. In connection with that transaction an agreement was entered into between them on 08.05.2007; in order to honour the terms of the agreement he had handed over two cheques, bearing numbers 701558 and 701559, of the Punjab National Bank to the said Surendran. It was given signed, incorporating amounts. After paying the amounts to Surendran, some dispute was outstanding on the payment of interest. Thereafter, in conspiracy with the appellant, Surendran handed over the subject cheque to the appellant, who is his relative. Thereafter, by incorporating date and name, the instrument was fabricated and presented for collection and thus created a cause of action. After the institution of the complaint he had talked to Surendran and he had assured to withdraw the complaint. He had caused to issue a reply notice incorporating all details. 4. Thereafter three witnesses were examined on the side of the defence, who are the said Surendran, his wife Indira and the 1[st] respondent himself. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found the 1[st] respondent not guilty of the offence Crl.A.524/2015 5 punishable under Section 138 of the Act and acquitted him. That finding has been called in question in appeal after obtaining leave of the court. 5. The learned counsel for the appellant submitted that the trial court has failed to appreciate the oral evidence and also the documents placed before it in proper context. Even though it was stated in Ext.D1 that the appellant had created a cause of action against the 1[st] respondent by fabricating a document, no action has been taken against him. Ext.D2 agreement is inherently defective, since its original was not produced. Ext.D2 does not reflect handing over of two cheques. The 1[st] respondent has admitted his signature found on Ext.P1, he has not given possible explanation for issuing such a cheque and therefore the trial court ought to have drawn presumptions under Sections 118 and 139 of the Act in favour of the appellant. Placing reliance on the decision reported in **Rangappa v. Sri Mohan [(2010) 11 SCC 441]** , the counsel stated that the Apex Court has acquitted the accused in the said case on identical facts. He also placed reliance on the decisions in **Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446]** and **Kalamani Tex and another v. Balasubramaniam and another [ILR 2021 (1) Ker. 855]** . According to the learned counsel, the Crl.A.524/2015 6 evidence tendered by the 1[st] respondent is hardly sufficient to displace the presumptions available in favour of the appellant. 6. On the other hand, the learned counsel for the 1[st] respondent submitted that with reference to Ext.D1, immediately on receipt of the lawyer notice he had issued a reply stating true facts. The testimony of DW1 also indicates that there was a transaction in connection with the Tempo Traveller jointly owned by the 1[st] respondent and DW1; he has also admitted the execution of an agreement on the lines of Ext.D2. The appellant had instituted a suit for realisation of money, on the same cause of action, which stands dismissed. According to him, the entire circumstances and the inconsistent statements given by the appellant before the trial court and also before the civil court are sufficient to expose the real facts. It has also come out that DW1 is a close relative of the appellant. Even though he wanted to cover up the relationship, it is certain that by his admission before the civil court it has come out that they are relatives and thus the stand taken by the 1[st] respondent stands vindicated. The learned counsel thus prayed for dismissing the appeal. 7. In reply, the learned counsel for the appellant submitted that Crl.A.524/2015 7 the appellant has already preferred an appeal against dismissal of the suit, which is pending. The learned counsel for the 1[st] respondent has disputed this submission. On the basis of the submissions, this Court directed the Registrar (Judicial) to ascertain from the Additional Sub Judge, Thrissur, where O.S.No.1498/2010 was dismissed under Ext.D6 judgment, as to whether any appeal has been preferred against the judgment and, if so, the outcome of the appeal. Pursuant to the same, the Additional Sub Judge-II, Thrissur sent a reply by fax, on 08.04.2021, stating that the plaintiff in O.S. No.1498/2010 had preferred an appeal as A.S. No.12/2013 before the District Court, Thrissur, that, by order dated 31.01.2019, the appeal was dismissed due to non-appearance of the counsel on both sides. A copy of the order of the Additional District Court-I, Thrissur in A.S.No.12/2013 dated 31.01.2019 was also appended. In other words, the appeal preferred against Ext.D6 judgment was not prosecuted and thus it was dismissed for default. Thus the Ext.D6 verdict of the trial court on the issue has become final. 8. As adverted to earlier, the appellant contended that the 1[st] respondent had close acquaintance with him and on that basis he had Crl.A.524/2015 8 borrowed an amount of Rs.1,00,000/- from him on 10.04.2007; when the amount was demanded back, the Ext.P1 cheque was issued on 01.11.2007, which, on presentation, was returned dishonoured and that gave rise to the cause of action; the complaint was registered after sending a statutory lawyer notice. The 1[st] respondent/accused had denied the transaction. According to him, he had no acquaintance with the appellant, Ext.P1 was not executed or issued by him to the appellant, but it was handed over to Surendran, a close relative of the appellant in a vehicle transaction, evidenced by Ext.D2 agreement. According to him, a Tempo Traveller was owned jointly by himself and Surendran; when it was disposed of, some amounts were due from him to Surendran and on that consideration, the Ext.D2 agreement was executed and towards payment of an amount of Rs.1,92,000/-, two cheques, Exts.D3 and D4, were handed over to Surendran without incorporating the name of the payee or date, but incorporating only the amounts and also putting his signatures. He had given back the entire amount due to Surendran. But the original agreement or cheques were not returned since there was some dispute with regard to the interest payable. Thus Surendran used the services of the Crl.A.524/2015 9 appellant, fabricated one of the cheques by incorporating the name of the appellant and made him to present the cheque. Thus he has denied the transaction. 9. After considering the oral testimony of PW1 and DWs 1 to 3 as well as Exts.P1 to P7 and also Exts.D1 to D6 documents, the learned Magistrate found the 1[st] respondent not guilty and that verdict is under challenge in this appeal. 10. After re-visiting entire materials and evidence and analysing the circumstances, the learned counsel for the appellant could not persuade this Court to hold that it was a transaction as alleged by him. Firstly, the very acquaintance between the appellant and the 1[st] respondent is a subject of dispute. While the appellant claimed that he had close acquaintance with the 1[st] respondent, the 1[st] respondent denied the same. The appellant has no case that any independent witness, much less members of his family had witnessed the transaction either on 10.04.2007 or on 01.11.2007. They are not neighbours. Their association or acquaintance is not proved. According to the appellant, the 1[st] respondent resides about 15 kms away from his house. Even in the light of the dispute raised by the 1[st] Crl.A.524/2015 10 respondent, in spite of his claim that the 1[st] respondent had facilitated purchase and sale of vehicle for him, no evidence was tendered to prove any previous association between them. 11. The claim of the appellant that he had lent an amount of Rs.1,00,000/- on 10.04.2007, without any scrap of evidence or document, has to be appreciated in the above backdrop. So long as there is no evidence of any previous association between them, it is improbable that so much money was lent, without obtaining any security whatsoever. Therefore that aspect itself casts doubt on the case of the appellant. 12. Secondly, and more importantly, immediately after the receipt of Ext.P5 lawyer notice, the 1[st] respondent had issued the Ext.D1 reply denying any transaction between them and also stating his version about the subject cheque. Relevancy of sending a reply notice to the Ext.P5 need not be overstated. In fact, it is the earliest possible opportunity made available to an accused in a cheque dishonour case to give expression to his version about the transaction. One can find that the 1[st] respondent has maintained the version conveyed through the Ext.D1 reply throughout the proceedings. He has also placed materials before court probabilising that Crl.A.524/2015 11 version. Ext.D2 agreement, Exts.D3 and D4 copies of cheques etc. cannot be ignored by the court. 13. Thirdly, the wavering nature and the inconsistent contentions taken by the appellant stands sufficiently exposed. As noticed earlier, on the original cause of action, the appellant had moved the civil court with a suit before the Sub Court, Thrissur, for realisation of money. Fortunately, a verdict was rendered in the suit, much before passing the judgment under challenge. The stand of the 1[st] respondent from the very beginning is that the appellant is a close relative of the said Surendran with whom he had a vehicle deal. The appellant was examined before this Court twice, on 17.07.2010 and on 01.09.2012. Before the trial court he boldly stated that he had no acquaintance whatsoever with Surendran. In order to expose the stand, a copy of deposition of the appellant given before the civil court was produced and marked as Ext.D5, where he stated that Surendran S/o.Sankaran is the husband of the daughter of his sister. 14. Exts.D5 and D6 were highlighted by the respondent to indicate the prevaricating stands taken by the appellant before the trial court and the civil court. When examined as PW1 before the trial court, the Crl.A.524/2015 12 appellant stated that the Ext.P1 was brought prepared and signed before him. But before the the civil court he said that the entire entries in Ext.P1 cheque were inserted before him. So, on this aspect also the appellant has taken different stands. In the circumstances, the trial court cannot be found fault with for disbelieving such a version. 15. Moreover, the argument of the learned counsel that merely for the reason that the 1[st] respondent has admitted his signature on Ext.P1, the court should have assumed its genuineness cannot be appreciated in right earnest. The decisions in **Bir Singh** and **Kalamani Tex,** cited supra, were rendered in different contexts. Here, the 1[st] respondent has no case that he had any monetary transaction with the appellant, but has stated specifically in Ext.D1, that the Ext.P1 was handed over to Surendran without incorporating the name of the payee and putting the date and that, Surendran had facilitated it to misuse the same. The presumptions under Sections 118 and 139 of the Act can be drawn in favour of the complainant only if the execution of the cheque is admitted or proved. Here, the 1[st] respondent has denied its execution and has given his own version as to how the document had come into existence. Exts.D2 and D3 documents Crl.A.524/2015 13 have to be appreciated in this context. Admittedly the 1[st] respondent and DW1 had some vehicle deal, they jointly owned a Tempo Traveller and an agreement like Ext.D2 was executed while they had parted company. DW1 also admitted that an amount of Rs.1,92,500/- was due to him, while executing such an agreement two cheques drawn on Punjab National Bank were handed over to him, for Rs.1,92,000/-. It is the common case that the transaction between DW1 and the 1[st] respondent has come to an end. According to DW1, the 1[st] respondent paid him the entire money and took back the original agreement and the cheques, but the 1[st] respondent has denied the same. If the documents were taken back, normally the 1[st] respondent would not have held back the originals from the court. Here also the version of the 1[st] respondent appears more probable. 16. Yet another conspicuous aspect is, barring the name of the payee and the date, Ext.D3 is the true replica of Ext.P1 cheque. On a conjoint reading of the oral testimony of the witnesses and the documents, I do not find my way to uphold the contentions of the appellant. The appellant could not convince the trial court that Ext.P1 was issued to the 1[st] respondent in consideration of a legally enforceable debt due to him. Crl.A.524/2015 14 The civil court has also non suited him and the Ext.D6 is relevant under Section 42 of the Evidence Act. The facts in **Rangappa** , cited supra, has no similarity of facts to the case on hand. On these considerations, I find that the appellant has failed to make out an offence under Section 138 of the Act. Thus the impugned judgment does not warrant interference in appeal. It also seems that this was eminently a fit case, that too after the verdict of the civil court, for invoking provisions under Section 250 of the Cr.P.C. Any how, no argument has been raised on the lines before this Court. The appeal is dismissed. ## **K. HARIPAL JUDGE** okb/08.04.21 //True copy// P.S. to Judge