O.K. Sreedharan Nambiar v. C.P. Mayi Ali

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** **CRL.A.No. 382 of 2001()** **-------------------------------** **CC.436/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR** **....................** ## **APPELLANT:** **--------------------** **O.K.SREEDHARAN NAMBIAR, S/O KUNHAPPA NAMBIAR, AGED 56 YEARS, POSTAL ASSISTANT, SREEPURAM, KEESHALLUR.P.O.** **BY ADV. SRI.M.P.ASHOK KUMAR SRI.N.GANGADHARAN** **RESPONDENT:** **---------------------** **C.P. MAYI ALI, CHERIKKALLIL HOUSE, MUZHAPPILANGAD.P.O.** **BY ADV. SRI.P.M.HABEEB** **THIS CRIMINAL APPEAL HAVING BEEN F INALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN, J** **- - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 382 of 2001** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 28[th] day of November, 2008.** ## **J U D G M E N T** Having aggrieved by the order of acquittal passed by the court below, in favour of the accused in a proceedings under Section 138 of the Negotiable Instruments Act, the complainant preferred this appeal. 2. The case of the complainant is that the accused borrowed a sum of Rs.30,000/- from him during the month of August 1994 and towards the repayment of the said amount he issued a cheque for Rs.30,000/- dated 31.1.1995 drawn on his account maintained in Treasury Savings Bank, District Treasury, Kannur. It is the further case of the complainant that the cheque in question was presented for encashment through his account in Post Office Savings Account at Mamba, but the same was bounced with the endorsement “Drawer of the cheque has stopped payment” and the cheque along with the cheque return memo received by the complainant on 24.2.1995. It is further averred that he caused to sent a lawyer notice to the accused, but he refused to accept the same. Therefore he approached the **Crl. Appeal No. 382 of 2001** -2- court below by filing a complaint which was taken into file as C.C. No. 436 of 1995. On the appearance of the accused, the particulars of the allegations were read over and explained to him to it which he pleaded not guilty which resulted in the further trial of the case during which PWs 1 to 4 were examined from the side of the complainant and marked Exts.P1 to P6. The incriminating circumstances, which emerged during the evidence of the complainant were put to the accused under Section 313 of the Code of Criminal Procedure and he denied the same. It is the further case of the accused that there was a transaction between the accused and the complainant under which the accused borrowed a sum of Rs.10,000/- and at the time of obtaining that amount he had issued a blank signed cheque as a security and it is the said blank cheque misused by the complainant for the purpose of the present case, even though the account with that transaction was settled. Thus the accused, denied the execution and issuance of the cheque in question. In order to substantiate the case of the defence, he had examined DW1 to DW3 and also produced Exts.D1 to D7. On the basis of the rival pleadings and contentions and materials on record, the **Crl. Appeal No. 382 of 2001** -3- court below formulated three issues for its consideration and finally found that the complainant failed to plead and prove, that Ext.P1 cheque was returned unpaid due to insufficiency of fund in the account maintained by the accused and failed to establish an offence under Section 138 of Negotiable Instruments Act. Accordingly the accused is found not guilty and accordingly he is acquitted. It is the above finding and order of acquittal challenged in this appeal. 3. The learned counsel for the appellant submitted that complainant has established the case by producing Ext.P1 cheque and by adducing oral evidence of complainant and other three witnesses. The learned counsel pointed out that accused had admitted the execution of Ext.P1 cheque but in order to escape from the penal liability, the different version given to that effect that the cheque in question was given as security connected with earlier transaction. The counsel submitted that apart from mere averments or claim with regard to earlier transaction, no evidence is produced by the accused to substantiate such contentions. The learned counsel pointed out that though the accused has claimed that there was an earlier **Crl. Appeal No. 382 of 2001** -4- transaction and the cheque in question was given as security connected with such transaction, there is no explanation as to why the said cheque was not demanded back and obtained especially in view of the further case of the defence that the said transaction was settled after paying entire amount. Thus according to the learned counsel, Ext.P1 cheque was issued by the accused towards the discharge of the debt that arose out of the borrowal of Rs.30,000/ from the complainant. Therefore the order passed by the court below is liable to be set aside and the order of acquittal is liable to be reversed. 4. Per Contra the learned counsel for the respondent submitted that the complainant has miserably failed to establish the case against the accused beyond reasonable doubt and he had miserably failed to prove the execution and issuance of cheque connected with the transaction which he alleged. According to the learned counsel for the respondent, by producing evidence, especially, documentary evidence such as Exts.D2 to D4 which are letters of the complainant himself pertained to the period much before the alleged transaction in the complaint the defence has established its case. It is also the **Crl. Appeal No. 382 of 2001** -5- case of the counsel that though it is disclosed through letters Exts. D2 to D4 that there was an earlier transaction between the complainant and accused, the complainant suppressed those transaction in the complaint and he had admitted about the said letters only when it put to him while he was cross examined. According to the learned counsel, the trial court, after considering the entire facts and circumstances involved in the case, came into a correct conclusion and by that finding and order of the acquittal of the trial court, the innocence of the accused is reiterated and therefore this court will not be justified in interfering with such an order of acquittal. 5. Going by the evidence of complainant, especially, through oral deposition of PW1 it can be seen that he had practically admitted the contents of Exts. D2 to D4 from which it is discernible that there was some prior transaction between the accused and complainant and cheque has been issued to the complainant by the accused. In this juncture it is to be noted that in the complaint, the complainant deliberately omitted to mention any of such transactions, but he was forced to disclose and admit the same during his cross examination especially **Crl. Appeal No. 382 of 2001** -6- when he was confronted with Ext. D2 to D4 letters issued by himself. In the above circumstance I have no hesitation to hold that the accused has succeeded in establishing a probable case in favour of the defence. If that be so, in the light of the decision of the apex court reported in **Narayana Menon Vs. State of Kerala 2006 (3) KLT Page 404 (SC)** the burden shifts and the presumption disappears and it is for the complainant to establish the execution and issuance of Ext.P1 cheque. But in the present case complainant has miserably failed to substantiate the discharge of the above burden. In **Johnson Scaria Vs State of Kerala[2006(4) KLT 290],** this court has held that under Section 114 of the Evidence Act appropriate inference 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 light of the above mentioned factual position, in this case, I am of the view that the complainant has miserably failed to prove the execution and issuance of cheque. It is also held by the Ape Court in **Krishna Janardhan Bhat v. Dattatraya Hegde [2008(1) KLT 425 (SC)]** the existence of legally **Crl. Appeal No. 382 of 2001** -7- recoverable debt is not a matter of presumption under Section 139 of the Act and it does not raise presumption with regard to existence of debt also. Therefore mere holding of Ext.P1 cheque is not sufficient to hold that that exist a debt from the part of the drawer of Ext.P1 cheque. 6. I have repeatedly perused the averments contained in the complaint, but failed to note any averments in terms of section 138 of the Negotiable Instruments Act. Though the trial court in paragraph 18 after consideration of various decisions found that in order to attract the ingredients of section 138 of the Negotiable Instruments Act it is to be alleged and proved that there was insufficient amount in the account of the drawer or the amount covered by the cheque exceeded the arranged amount and also found that there is no such allegation either in the complaint or in the evidence. Since the complainant himself stated during his examination as PW1 and also stated in the complaint that the cheque in question was returned or dishonoured as the payment was stopped by the drawer, it is incumbent for the complainant to establish that though cheque was dishonored for the reason stated in the Ext.P2 memo, to **Crl. Appeal No. 382 of 2001** -8- further plead and prove that there was no sufficient fund in the account maintained by accused to honour such cheque. Therefore in the absence, pleadings and evidence to that effect, no offence under Section 138 of the Negotiable Instruments Act is attracted against the accused. In this juncture it is relevant to note that the ledger extract of the account maintained by the accused is not produced or no evidence adduced through a competent witness regarding such details. Therefore the complainant has miserably failed to make out an offence under Section 138 of the Negotiable Instruments Act. In the above circumstances, I find no reason to interfere with the findings and order of the acquittal passed by the court below. Consequently, the appeal fails. In the result Appeal is devoid of merit and the same is dismissed accordingly. ## **V.K.MOHANAN, JUDGE** rhs