Nirmala v. Dhanya and State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 30[TH] DAY OF MAY 2023 / 9TH JYAISHTA, 1945 ``` ``` CRL.A NO. 480 OF 2021 ``` ``` AGAINST THE JUDGMENT DATED 07.04.2021 IN ST NO.498/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPUZHA ``` ## `APPELLANT/COMPLAINANT:` ``` NIRMALA, AGED 54, W/O MOHANAN NAIR, CHITTEM VEEDU, KALARCODE, PARAVOOR VILLAGE, SANATHANAPURAM P.O., ALAPPUZHA DISTRICT. ``` ``` BY ADV.SRI.M.NARENDRA KUMAR ``` ## `RESPONDENTS/ACCUSED & STATE:` ``` 1DHANYA, AGED ABOUT 33, W/O VINOD, THEKKETHIL VEEDU, KALARCODE (SOUTH OF KALARCODE TEMPLE), PARAVOOR VILLAGE, SANATHANAPURAM P.O., ALAPPUZHA PIN-688 003 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN- 682 031 R1 BY ADVS.SRI.MANOJ B.MENON SRI.JIMMY GEORGE (VATTATHARA) SMT.ANJALI MENON R2 BY PUBLIC PROSECUTOR SMT.SEENA C. ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A. No.480 of 2021 -:2:- ## **`JUDGMENT`** ## **`Dated this the 30[th ] day of May, 2023`** The appeal on hand is directed against a judgment passed by Judicial First Class Magistrate Court, Ambalapuzha (for short the ‘trial court’) on 07.04.2021 in ST No.498/2017. The appellant is the complainant in the above prosecution. 2. For the sake of convenience, 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. 3. ST No.498/2017 is a prosecution launched by the complainant before the trial court under Section 142 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) for an offence under Section 138 N.I.Act. 4. The complaint was filed before JFCM-I, Alappuzha. Sworn statement of the complainant was recorded by it and Crl.A. No.480 of 2021 -:3:- cognizance was taken under Section 138 N.I. Act. On appearance of the accused, particulars of the offence were read over and explained to her. She pleaded not guilty. Accordingly the trial was commenced. 5. On the side of the complainant she herself was examined as PW1. Exts. P1 to P9 were marked. No evidence was let in by the accused. On the basis of the evidence, the trial court arrived at a finding that the accused is not guilty for the offence under Section 138 NI Act and thus acquitted her under Section 255(1) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). The above judgment is taken up in challenge by the complainant before this Court in the appeal on hand. 6. It was contended by Sri.M.Narendra Kumar the learned counsel for the appellant that, the finding that the accused was not guilty under Section 138 N.I. Act was arrived at and the order of acquittal was passed by the trial court in her favour for two reasons. The first reason was Crl.A. No.480 of 2021 -:4:- that the complainant failed to establish her source of income to advance a huge sum of `8,00,000/- to the accused. The second reason was that the date of the transaction and other particulars of the transaction that created the monetary liability of `8,00,000/- and issuance of Ext.P1 cheque to discharge that were not stated by the complainant in the complaint. 7. The learned counsel has also relied on **Sunitha V. Sheela Antony and Another [2020 (3) KHC 138], Uttam Ram v. Devinder Singh Hudan and Another [ (2019) 10 SCC 287], Bir Singh V.Mukesh Kumar [ 2019 (1) KHC 774 (SC)] and Rohitbhai Jivanlal Patel V. State of Gujarat and Another [2019 (2) KHC 243 (SC)]** to base the arguments advanced. 8. It was contended by the learned counsel for the accused on the contrary that the finding of not guilty was arrived at and the order of acquittal was passed by the trial Crl.A. No.480 of 2021 -:5:- court in favour of the accused correctly and therefore the impugned judgment is liable to be confirmed. 9. In the complaint filed under Section 142 NI Act to launch the prosecution it was stated by the complainant in paragraph 1 as follows: “ The accused had drawn and issued to the complainant, the Cheque No:10100598 dated 30-01-2014 for an amount of Rs.8,00,000/[Rs:EIGHT LAKHS ONLY] on your account maintained with the Federal Bank Ltd. Kalarcode Branch for valuable consideration and towards the discharge of a valid debt in favour of the complainant.” 10. Going by the above averments, it is revealed that details of the transaction, in which `8,00,000/- was advanced by the complainant to the accused are not stated. Paragraph 5 of the proof affidavit filed by the complainant in lieu of chief examination is also extracted hereunder : ൽ _2009_ ൽ _"ഞാനും പ്രതിയും തമ്മി മുത അടുത്ത_ ൾ _പരിചയക്കാരും സുഹൃത്തുക്കളും ആണ്. ഞങ്ങ രണ്ടുപേ രും_ Crl.A. No.480 of 2021 -:6:- _കള_ ർ _കോ ട് N.S.S. കരയോ ഗത്തിലെ അംഗങ്ങളാണ്._ ൽ _കരയോ ഗം ഓണഫണ്ട് നടത്തിയിരുന്നു. ഓണഫണ്ടി_ ൾ _ക_ ർ _നിന്നും അംഗങ്ങ ക വായ്പ കൊ ടുക്കുന്ന ഏ പ്പാടുണ്ടായിരുന്നു_ ൻ _കരയോ ഗത്തിന്. ഞാ ടി ഓണഫണ്ട് പിരിക്കുന്ന_ ൽ _ചുമതലയുള്ള ആളായിരുന്നു. പ്രതി ഓണഫണ്ടി നിന്നും പല_ ൾ _പ്രാവശ്യം വായ്പക എടുക് യും തിരികെ കൊ ടുക്കുന്നതും_ ൽ _എനികക അറിയാമായിരുന്നു. ആയതിനാ ടി പ്രതിയെ എനികക വിശ്വാസമായിരുന്നു. ഇപ്രകാരം പ്രതിയുമായി_ ൽ ൾ _ക_ ർ ൽ _അടുത്ത അവസരത്തി ടിയാ ക ചേ ത്തലയി കുടുംബ വസ്തു ഉണ്ടെന്നും ആയത് വില്കുന്നതിനുള്ള_ ൽ _ശ്രമത്തിലാണെ ന്നും എന്നാ ടിയാളുടെ പിതാവിന്_ ൽ _സുഖമില്ലാതെ കിടക്കുന്നതിനാ പ്രതികക ആയത്_ ൽ ൻ _വി ക്കുന്നതിന് കഴിയാത്ത അവസ്ഥയാണെ ന്നും ടിയാ_ ൽ ൽ _ആശുപത്രിയി നിന്നും വന്നാ മാത്രമേ വില്പന_ ൽ _നടക് യുള്ളൂ എന്നും അതിനാ പ്രതിയുടെ വീടുപണിക ന_ ൽ _കുറച്ചു രൂപ കടമായി കണമെനന എന്നോട് ആവശ്യപ്പെടുകയും ആയതിന്റെ ഉറപ്പിലേ കക പലപ്പോഴായി_ ൾ ൾ _തുക വാങ്ങുമ്പോ പ്രതി എനികക Blank ചെ ക് ഒപ്പിട്ടു ന_ ൽ ൽ ൾ _കി തന്നു കൊ ണ്ട് തുക മുഴുവനായും വസ്തു വി ക്കുമ്പോ തിരികെ തന്നുകൊ ള്ളാം എന്നു ഉറപ്പു പറഞ്ഞു കൊ ണ്ട് 2010_ ൽ _മുത എന്നോട് പലപ്രാവശ്യം പണം_ ർ _ന 2014_ ൽ _കടംവാങ്ങിയിരുന്നതാണ്. തുട ന എന്റെ മകളുടെ_ ർ _വിവാഹത്തിന് സ്വ ണ്ണം എടുക്കുന്നതിനും മറ്റും പണം_ ൾ ൻ _ആവശ്യമായി വന്നപ്പോ ഞാ പ്രതിയെ സമീപിച്ച്‌ എനികക പ്രതി നാളിതുവരെ തരുവാനുള്ള തുകയെ_ ൾ _സംബന്ധിച്ച കണക് ബോ ധ്യപ്പെടുത്തിയതു പ്രകാരം ന_ ൽ ൻ _എട്ടുലക്ഷം രൂപ എനികക തിരികെ കുവാ ഉണ്ടെന ക_ ൽ _പ്രതി സമ്മതിക് യും ആയതിലേ ക പ്രതി എന്റെ പേ രി_ Crl.A. No.480 of 2021 -:7:- ൽ _സ്വന്തം കൈ പ്പടയി എഴുതി ഒപ്പുവച്ചു തന്ന ചെ ക്കാണ്_ ൻ _:_ ൽ ൽ _ഞാ ബഹു കോ ടതിയി വാദിഭാഗം തെ ളിവി ഹാജരാക്കിയിട്ടുള്ളത്._ ” 11. Going by the above extract, it is noticed that the complainant has only stated about advancing of different sums to the accused on different occasions on the basis of signed blank cheques given to her by the latter. 12. It is clear from the evidence of PW1 that `8,00,000/- was the amount settled on the basis of the different transactions among herself and the accused and Ext.P1 cheque was issued to discharge that liability. The admitted case of the accused was that a sum of `1,00,000/was borrowed from the complainant and the disputed cheque was given as security and the prosecution in question was launched by misusing it. The accused does not have a case that `1,00,000/- borrowed by her from the complainant has already been discharged. Crl.A. No.480 of 2021 -:8:- 13. Admittedly at the time of issuance of the disputed cheque, it was a signed one. The accused does not have a case that the disputed cheque was taken from her custody by the complainant fraudulently or forcibly. The stand of the accused in the case on hand was that the disputed cheque was one issued by her as security when `1,00,000/- was borrowed from the complainant. Therefore, it can be gathered that the disputed cheque was issued by the accused to the complainant voluntarily and in a signed form. 14. Though it is the specific case of the accused that Ext.P1 cheque was given as security when `1,00,000/- was borrowed from the complainant it is pertinent to note that in response to the notice sent to her prior to the launching of the prosecution wherein the monetary liability was shown as `8,00,000/-, no reply notice was sent stating the contents of the notice as false. Therefore, the case projected by her during trial can only be taken as an outcome of her afterthought. If the case of the accused was that the Crl.A. No.480 of 2021 -:9:- disputed cheque was given as security for a monetary liability of `1,00,000/-, the accused would have responded to the notice by sending a reply notice, stating her case then and there. The failure of the accused to send a reply notice would only probabilise the case of the complainant. 15. Section 139 N.I. Act is apposite to be extracted in the context: “139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. ” 16. In the context of the case as discussed above, the accused having taken a stand of voluntary issuance of a signed cheque to the complainant, there is every reason for presumption under Section 139 N.I. Act to attract in favour of the complainant. Since the presumption attracted being a rebuttable one, it is the onus of the accused to rebut the same. Section 139 N.I. Act provides that unless the Crl.A. No.480 of 2021 -:10:- contrary is proved by the accused, the presumption would continue to attract in favour of the complainant. 17. Issuance of Ext.P1 cheque was admitted by the accused as taken place in a transaction of borrowal of `1,00,000/- from the complainant. It is settled that the presumption under Section 139 can be rebutted in twin ways. Firstly, the accused can bring in evidence during cross examination of the complainant that her case is not a reliable one. Secondly the accused has to adduce evidence to establish the transaction of borrowal of `1,00,000/- from the complainant. 18. In the case on hand it is found that though complainant was cross examined elaborately by the learned counsel for the accused, she could not bring in any evidence liable to view the case of the complainant as unbelievable or else, she did not succeed in bringing preponderance of probabilities in the case of the complainant, liable to discard it. It is also found that the accused failed to establish the Crl.A. No.480 of 2021 -:11:- monetary transaction whereby `1,00,000/- was borrowed from the complainant, issuance of Ext.P1 cheque in the above transaction and launching of the prosecution in question by misusing the said cheque. For failure of the accused to adduce evidence in the above manner, he cannot be said to have rebutted the presumption under Section 139 N.I. Act. Therefore, the prosecution is only to succeed. 19. The finding that the accused is not guilty is arrived at by the trial court for two reasons already stated above. The reasons are failure of the complainant to establish her source of income to advance the money and to state all particulars of the transaction relied on by her in the complaint. Those are not sufficient grounds to treat the case of the complainant as unsustainable. The accused by projecting a case (though not established) that `1,00,000/was advanced by the complainant to her is found to have endorsed the factum that the complainant has the source of money. Crl.A. No.480 of 2021 -:12:- 20. The trial court in an erroneous appreciation of the evidence adduced by the complainant, both oral as well as documentary, arrived at a wrong finding that the complainant failed to establish the monetary transaction, that resulted in issuance of Ext.P1 cheque. When a signed cheque is admitted as voluntarily issued by the accused in a transaction, as held by the Apex Court in **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]** , the presumption under Section 139 would be attracted that the cheque was issued towards discharge of a debt or liability due to the complainant. When the accused has projected a case in defence that Ext.P1 cheque was issued as security in a monetary transaction whereby `1,00,000/- was borrowed by her from the complainant and it was misused by the complainant for launching the prosecution, it is for her to prove it. She failed to do so and therefore the presumption under Section 139 N.I. Act would continue to operate in her Crl.A. No.480 of 2021 -:13:- favour. In view of the above discussion, Crl. Appeal is liable to succeed. In the result, Crl.Appeal is allowed. The judgment under challenge is set aside. Accused is found guilty for the offence under Section 138 N.I. Act. She is convicted and sentenced to undergo imprisonment till rising of the court and also to pay `8,00,000/- (Rupees eight lakhs only), the amount covered by the disputed cheque, as fine. In case of default in payment of the fine amount, the accused shall undergo simple imprisonment for four months. The fine amount on realisation shall also be disbursed to the complainant as compensation. Sd/- **MARY JOSEPH, JUDGE.** MJL