P. Hamsa v. Shanavas and State of Kerala

Crl. Appeal No. 1382/2007 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 CRL.A NO. 1382 OF 2007 JUDGMENT DATED 09.03.2005 IN CC NO.102 OF 1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM ## APPELLANT/COMPLAINANT: P.HAMSA, S/O. ATHAN, POOLAKKAL VEED, AKALUR,, BY POWER OF ATTORNEY HOLDER, MUHAMMED K., S/O MAMMI, KANKADIYIL VEED,, CHUNANGAD AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV SRI.K.A.JALEEL ## RESPONDENTS/ACCUSED & STATE: 1 SHANAVAS, S/O. UBAID, PALAVILA VEED, P.O.NEDUNKANDAM,, VARKKALA, THIRUVANANTHAPURAM DISTRICT. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADVS. SRI.P.M.RAFIQ SRI.P.VIJAYA BHANU SRI. SANAL. P. RAJ – PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2024, THE COURT ON 12.06.2024 DELIVERED THE FOLLOWING: Crl. Appeal No. 1382/2007 : 2 : ## **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 1382 of 2007 -------------------------------------------------------Dated this the 12[th] day of June, 2024. ## **JUDGMENT** This appeal is filed against the judgment dated 09.03.2005 in C.C. No. 102 of 1998 on the file of the Judicial First Class Magistrate, Ottapalam challenging the acquittal of the accused in a complaint alleging the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) under Section 255(1) Cr.P.C . 2. The complainant is the appellant and the complaint was filed on the allegation that the accused issued a cheque for Rs.6,00,000/- dated 22.09.1997 for discharging the liability towards the complainant and when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, the power of attorney holder of the complainant was examined as PW1 and Exhibits P1 to P8 were marked. No evidence was adduced from the side of the accused. Crl. Appeal No. 1382/2007 : 3 : 4. After considering the evidence on record and hearing both sides, the trial court found that PW1, the power of attorney holder of the complainant, has no direct knowledge regarding the alleged transaction and that the complainant has not succeeded in proving the offence under Section 138 of the NI Act against the accused. 5. Heard Smt. Shifana K.S., representing the learned counsel for the appellant on record, Sri. Ajeesh K. Sasi, the learned counsel for the first respondent and Sri. Sanal P. Raj, the learned Public Prosecutor appearing for the second respondent, State of Kerala. 6. The learned counsel for the appellant argued that the signature in Exhibit P3 cheque is not disputed and in the absence of any evidence from the side of the accused to rebut the statutory presumptions, the trial court ought to have found the accused guilty of the offence under Section 138 of the NI Act. But, the learned counsel for the accused/first respondent argued that PW1, the power of attorney holder of the complainant, has categorically admitted in cross examination that he has no direct knowledge regarding the alleged transaction between the accused and the complainant and that the complainant has not adduced any _prima facie_ evidence regarding the execution and issuance of the cheque and therefore, Crl. Appeal No. 1382/2007 : 4 : there is no reason to interfere with the findings in the impugned judgment. 7. The averments in the complaint only shows that the accused issued cheque dated 22.09.1997 for Rs.6,00,000/- in discharge of the liability towards the complainant and there is no averments in the complaint regarding the date of execution and issuance of the cheque or as to the nature and place of transaction between the parties. In para 2 of the chief affidavit of PW1, the power of attorney holder of the complainant, it is stated that the accused issued the cheque in discharge of the amount due to the complainant in a chitty transaction. 8. However, in cross examination, PW1 categorically admitted that he has no direct knowledge regarding the transaction and that he has only hearsay knowledge from the complainant regarding the alleged transaction. In cross examination, PW1 deposed as follows: “ഈ കേ�സി�ലെ� ഇടപാ�ട�ലെ� ��റി�ᨴ᪚� വാ�ദി� പാറി്ᨼ അറി�വാ� മാ�്ᩔ�കേമാ . . എ��ᨪ᪎�ᩦ᪏� കേ�രി�ᨾ᪚� ഒ᪎❒� അറി�യി��" കേ�സി� ലെ��ട�ᨪ᪎�᪎❒���� മാ�ᩘ᪚ വാ�ദി� എകേ᪎❒�ട� എ�"� ��രി$്ᨲുᨵ� പാറി്ᨼ� . ആ അറി�വാ� മാ�്ᩔ�കേമാ എ��ᨪ᪎� ഇകേ(�ുᨶ� ഉᩦ᪏�.” Section 60 of the Evidence Act 1872 reads thus: Crl. Appeal No. 1382/2007 : 5 : “60. **Oral evidence must be direct** . –– Oral evidence must, in all cases whatever, be direct; that is to say –– if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.” 9. In _**Janki Vashdeo v. Indusind Bank**_ [2005 (2) KLT 265 (SC)] the Honourable Supreme Court held that power of attorney cannot depose for the acts done by the principal and he cannot Crl. Appeal No. 1382/2007 : 6 : depose for principal in respect of matters of which only the principal can have personal knowledge and in respect of which the principal is liable to be cross examined. In the said decision, it is also held that the power of attorney can appear only as a witness in respect of facts, which are within his personal knowledge. 10. In view of the categorical admission of PW1 in cross examination that he has no personal knowledge regarding the alleged transaction between the accused and the complainant and since the complainant has not chosen to enter the witness box or to examine any other witness to prove the execution and issuance of the cheque, I find that the complainant has not adduced _prima facie_ evidence to attract the statutory presumptions and the contention of the appellant in this regard cannot be accepted. 11. When the accused was questioned under Section 313 Cr.P.C., he stated that there was no chitty transaction and he has not conducted any chitty and that he was running Harsha Advertising at Qatar and there he borrowed Rs.1000 Qatar Riyal from the complainant and at that time, the complainant obtained his signed blank cheque and signed stamp paper and even though, he repaid 1000 Qatar Riyal to the complainant, the complainant has not returned the blank signed cheque and stamp paper and subsequently, Crl. Appeal No. 1382/2007 : 7 : he filed this complaint by misusing the signed blank cheque entrusted as security. 12. The Honourable Supreme Court in **Basalingappa v. Mudibasappa [(2019) 5 SCC 418]** summarised the principles of law governing presumptions under Sections 118(a) and 139 of the NI Act in the following manner: (i) Once the execution of cheque is admitted S.139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under S.139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden. Crl. Appeal No. 1382/2007 : 8 : 13. As noticed earlier, in this case, the complainant has not adduced any _prima facie_ evidence regarding the execution and issuance of the cheque and therefore, in the absence of any satisfactory evidence to show that Exhibit P3 cheque is supported by valid consideration at the time when the same was presented for collection, I find no reason to interfere with the findings in the impugned judgment and in that circumstance, I find that this appeal is liable to be dismissed. In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. sd/- **JOHNSON JOHN, JUDGE.** Rv