OOLAMKUNNATH O.M. Sindhu v. Alokandy Krishnan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 CRL.REV.PET NO. 191 OF 2023 ST 4/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,** ## **KOYILANDY** ## **REVISION PETITIONER/S:** OOLAMKUNNATH O.M. SINDHU AGED 40 YEARS W/O. SURESH, OOLAMKUNNATH, KANNADIPOYYIL P.O. BALUSSERY, KOZHIKODE DISTRICT, PIN - 673612 BY ADVS. K.P.SUDHEER J.RAMKUMAR ## **RESPONDENT/S:** 1 ALOKANDY KRISHNAN AGED 56 YEARS S/O. CHOYI, CHELIYA DESOM, CHENGOTTUKAVU VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673304 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. KOCHI, PIN - 682031 BY ADV SHARAN SHAHIER ## **OTHER PRESENT:** PP SANAL P. RAJ **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD** **ON 29.05.2023, THE COURT ON 02.06.2023 DELIVERED THE FOLLOWING:** Crl.R.P.No.191 of 2023 -2- ## **ORDER** Dated this the 02[nd] day of June, 2023 The revision petitioner is the accused in S.T.No.4 of 2021 on the files of the Judicial First Class Magistrate Court-II, Koyilandi. In his complaint, the first respondent/complainant alleged that the revision petitioner had borrowed an amount of Rs.8,00,000/- during the last week of December, 2018, promising to repay the amount within one week. Later, in discharge of the liability, the revision petitioner issued a cheque dated 21.10.2019. On presentation, the cheque was dishonoured for insufficiency of funds. Although lawyer notice was issued to the revision petitioner demanding the amount, he sent a reply denying execution of the cheque. It was hence alleged that the revision petitioner has committed the offence under Section 138 of the N.I.Act. Crl.R.P.No.191 of 2023 -3- 2. Before the trial court, PWs 1 to 4 were examined on the side of the prosecution and Exts.P1 to P7 marked. Thereafter, the revision petitioner was examined under Section 313 Cr.P.C and was called upon to let in defence evidence, if any. At that stage, the revision petitioner filed an application under Section 243 Cr.P.C with a prayer to send Ext.P1 cheque for examination by an expert. The trial court having dismissed that application, this criminal revision petition is filed. 3. Adv.K.P.Sudheer, appearing for the revision petitioner, pointed out that the revision petitioner and the first respondent are brothers-in-law and the consistent defence set up by the revision petitioner is that, Ext.P1 cheque was entrusted with the first respondent way back in the year 2008 for producing before the KSFE as security for a financial facility availed by the first respondent. Even though first respondent Crl.R.P.No.191 of 2023 -4- got back the cheque from the KSFE, he failed to hand it over to the revision petitioner. While so, disputes arose between the revision petitioner and the first respondent with respect to the partition of a family property. Due to this animosity, the first respondent presented the old cheque retained by him and got it dishonoured. The fact that Ext.P1 cheque is an old cheque is proven through the examination of the Bank Manager (PW2). In his evidence, PW2 has stated that other cheques in the series were presented in the year 2010 itself and Ext.P1 is not a CTS (Cheque Truncation System) cheque. On the other hand, in his testimony as PW1, the first respondent stated that Ext.P1 cheque was filled up and signed in his presence and handed over on 21.10.2019. He also stated that the revision petitioner had signed and written the entries in English. The attempt of the revision petitioner, by obtaining expert opinion on Ext.P1 Crl.R.P.No.191 of 2023 -5- cheque, is to prove that the entries in the cheque are not in his handwriting, thereby discrediting the first respondent's evidence and rebutting the presumption under Sections 118 and 139 of the Negotiable Instruments Act. 4. Adv.Sharan Shahier appearing for the first respondent, submitted that, having admitted the issuance of a blank signed cheque, the revision petitioner cannot seek expert opinion on the cheque, since the legal position is that, even if the entries are made by the complainant, that will have no impact on the presumption under Section 139. In support of this contention, reliance is placed on the decision in _**Oriental**_ _**Bank of Commerce v. Prabodh Kumar Tewari [2022**_ _**(5) KHC 560]**_ , wherein it is held that, once handing over of signed blank cheque is admitted, evidence of the handwriting expert on whether the complainant had filled in the details of the Crl.R.P.No.191 of 2023 -6- cheque becomes immaterial. 5. It is by now well settled that Section 139 postulates a reverse onus clause. The onus can be discharged by letting in evidence or based on preponderance of probabilities. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. The manner in which the presumption can be rebutted is discussed in detail in _**Rangappa v. Sri Mohan [(2010) 11 SCC 441]**_ , the relevant portion of which reads as under; _'Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.'_ 6. In the case at hand, the attempt of the ## Crl.R.P.No.191 of 2023 -7- revision petitioner is to make out a probable case by disproving the allegation that he had filled up and signed the cheque before handing it over to the first respondent. In this regard, it is essential to note that the evidence of PW2 is to the effect that the other cheques, from the series to which Ext.P1 belongs, were presented in the year 2010 itself. That witness has also opined that, presently, only CTS cheques are allowed and Ext.P1 is not a CTS cheque. Pertinently, during cross-examination, PW1 stated that Ext.P1 cheque was filled and signed in his presence. In view of the assertive statement of PW1 that the cheque was filled up, signed and handed over by the revision petitioner, an expert opinion that the entries are not in the handwriting of the revision petitioner will definitely bolster the defence. 7. Having come to the above conclusion, I have to consider the impact of the decision in Crl.R.P.No.191 of 2023 -8- ## _**Oriental Bank of Commerce v. Prabodh Kumar Tewari**_ _**[2022 (2) KHC 560].**_ The short question is whether the decision takes away the accused's right to seek expert opinion even in a case where the complainant asserts that the cheque was filled up and signed by the accused in his presence. In this regard, it is pertinent to note that in _**Prabodh Kumar Tewari** (supra),_ the accused had admitted that a signed blank cheque was handed over to the complainant. The cheque was issued for and on behalf of a Private Limited Company and the accused had sought expert opinion in order to prove that the cheque was not handed over for the purpose stated in the complaint. In the above factual background the Apex Court declared the opinion of the handwriting expert, on whether the accused had filled the details in the cheque to be immaterial in determining the purpose for which the cheque was issued. The Apex Crl.R.P.No.191 of 2023 -9- Court also held that a drawer, who signs the cheque and hands it over to the payee, is presumed to be liable unless he adduces evidence to rebut the presumption. As held in _**Nagappa T v.**_ _**Y.R.Muralidhar [(2008) 5 SCC 533],**_ even in a case where a presumption can be raised under Section 118(a) or 139 of the Act, an opportunity must be granted to the accused for adducing evidence in rebuttal. By dismissing the petition under Section 243, the court below has denied the opportunity for rebuttal available to the accused. Viewed in that manner, the impugned order cannot be sustained. In the result, the criminal revision petition is allowed and the impugned order is set aside. The learned Magistrate shall take immediate steps for sending Ext.P1 cheque, along with the admitted signatures and writings of the revision petitioner, to the handwriting expert. Further Crl.R.P.No.191 of 2023 -10- proceedings in the case can be continued after receipt of expert opinion. Sd/- **V.G.ARUN JUDGE** Scl/