P. KOSHY JESTIN VILLA v. STATE OF KERALA & K. KRISHNAKUMAR BUNGLAWIL PAYYANALLOOR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **CRL.A.No. 511 of 2007** **CC 28/2005 of J.M.F.C.-I, MAVELIKKARA DATED 28-09-2006 Crl.L.P.542/2006 of HIGH COURT OF KERALA DATED 12-03-2007** ## **APPELLANT/COMPLAINANT:** **P.KOSHY JESTIN VILLA, PEROORKARAZHMA, VEDARAPLAVU P.O., CHARAUMMOODU.** **BY ADVS.** **SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.KAVITHA GANGADHARAN SRI.A.R.DILEEP** ## **RESPONDENTS/STATE AND ACCUSED:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 K.KRISHNAKUMAR BUNGLAWIL PAYYANALLOOR P.O., NOORANADU, ALAPPUZHA.** ## **OTHER PRESENT:** ## **SRI B JAYASURYA-PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.A.No. 511 of 2007 -2- ## **JUDGMENT** **The appellant is the complainant in C.C.No.28 of 2005 on the files of the court below. The appellant filed a complaint against the second respondent herein before the court below alleging offence under Section 138 of the N.I.Act. The court below as per judgment dated 28.9.2006, acquitted the accused under Section 255(1) Cr.P.C., against which this appeal has been filed after obtaining special leave from this Court.** **2. Service is complete. However, there is no appearance for the second respondent.** **3. Heard.** **4. The case of the complainant is that the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque** CRL.A.No. 511 of 2007 -3- **in favour of the complainant. The court below found that the prosecution was a false prosecution. PW1 stated that the cheque was issued as a security and if the amount covered by the cheque had been paid, the cheque would have been returned. In view of the above evidence of of PW1, the court below found that the cheque was not issued in discharge of the debt or liability. The Apex Court in Sampelly Sathyanrayana Rao v. Indian Renewable Energy Development Agency [2016 (4) KLT 24] held that the crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. The Apex Court further held in Sampelly Sathyanrayana Rao** CRL.A.No. 511 of 2007 -4- **(supra) that notwithstanding the recitals in the agreement that the cheque was issued as security, if the amount covered by the cheque was due as on the date when the cheque was presented for encashment, the cheque has to be construed as a cheque issued towards the discharge of the existing debt or liability.** **5. In this case, PW1 clearly stated that the amount was not returned. The evidence of PW1 would clearly show that as on the date when the cheque was presented, the amount was due to the appellant from the accused. Therefore, in view of the ratio in Sampelly Sathyanrayana Rao (supra), the finding of the court below that the cheque was not issued for the discharge of any debt, cannot be correct.** **6. PW1 did not specifically deny the** CRL.A.No. 511 of 2007 -5- **suggestion put to PW1 during his crossexamination that the omission to note the date of borrowing in the complaint was due to the sole reason that there was no borrowing of the amount by the accused. The said part of the evidence of PW1 was also taken into consideration by the court below for holding that the prosecution was a malicious prosecution. During the crossexamination of PW1, PW1 stated that the amount was borrowed on 15.5.2004 by the accused. Then, PW1 was asked as to why the date of borrowing the amount was not mentioned in the complaint. PW1 stated that there was no specific reason for that. Then, a suggestion was made to PW1 that it was only because no amount was borrowed by the accused on 15.5.2004 that the date of borrowing was not stated in the complaint. PW1 stated that** CRL.A.No. 511 of 2007 -6- **there was no specific reason for not mentioning the date of borrowing of the amount in the complaint. PW1 further stated that the amount was paid as cash. In view of the above clear evidence of PW1, the court below was perfectly incorrect in holding that the contention of the accused, that it was only because there was no borrowing of the amount by the accused that the appellant did not make any specific denial to the suggestion in this regard made on behalf of the accused, is correct.** **7. PW1 during his cross-examination stated that the amount and the date was written by his friend. The court below referred to the said part of the evidence of PW1 and held that the above evidence of PW1 would also show that the case of the complainant that the accused executed** CRL.A.No. 511 of 2007 -7- **Ext.P1 cheque is false. It is true that PW1 stated during the cross-examination that the amount and the date in Ext.P1 was written by his friend. Then a question was asked to PW1 as to whether the cheque was only a cheque having the signature alone. To that question, PW1 answered that the accused had written everything in the cheque in the presence of PW1. The learned counsel for the appellant has submitted that the evidence on record would clearly show that the word “friend” was used by PW1 to refer to the accused. It is clear from the evidence of PW1 that at the time of executing the cheque by the accused, the accused and PW1 alone were present. PW1 stated that no person other than the accused and PW1 was present at the time of executing the cheque by the accused. In view of the above** CRL.A.No. 511 of 2007 -8- **clear evidence of PW1, the finding by the court** **below in this regard cannot be correct.** **8. When a suggestion was put to PW1 that Ext.P1 was the cheque which was issued to PW1 as a blank signed cheque in a transaction which had taken place four years back, PW1 did not give any answer, is another finding of the court below. The evidence of PW1 would make it clear that the court below did not appreciate the evidence correctly. A suggestion was made to PW1 that even though the accused had paid the entire amount due to the complainant in connection with another transaction which had taken place four years back, the cheque entrusted by the accused with PW1 at that time had been misutilised by PW1 to file the present complaint. PW1 clearly denied the said suggestion. This would clearly show that** CRL.A.No. 511 of 2007 -9- **the said suggestion was not accepted by PW1. I have gone through the evidence of PW1 and I do not find anything in the evidence of PW1 to support the above said finding of the court below. Having gone through the evidence of PW1, I am fully convinced that the manner of appreciation of evidence by the court below was not in accordance with law. The court below should have appreciated the evidence as a whole rather than picking and choosing some sentence from the evidence as had been done by the court below. This type of practice must be deprecated. The evidence of PW1 would clearly show that the accused executed Ext.P1 cheque towards the discharge of the liability of the accused to PW1 in connection with the borrowing of the amount by the accused from PW1. Even though the accused** CRL.A.No. 511 of 2007 -10- **had taken a contention that a blank signed cheque issued by the accused to the complainant in connection with another transaction which had taken place four years back had been misutlisied by the complainant to file the present complaint, there is absolutely no material before the court to substantiate the same by the yardstick of preponderance of probabilities and possibilities.** **9. The Apex Court in T.P.Murugan (dead) through legal representatives v. Bojan [(2018) 8 SCC 469] held that mere raising a doubt sans cogent evidence cannot rebut the presumption under Section 139 of the N.I.Act. The Apex Court in Sampelly Sathyanrayana Rao (supra) held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the** CRL.A.No. 511 of 2007 -11- **cheque arises and it is for the accused to rebut the said presumption, though the accused need not adduce his own evidence and can rely upon the materials submitted by the complainant. The Apex Court further held in Sampelly Sathyanrayana Rao (supra) that mere statement of the accused may not be sufficient to rebut the said presumption.** **10. In this case, I have gone through the evidence of PW1 and I am satisfied that the evidence of PW1 would clearly establish that the accused executed Ext.P1 cheque as contemplated under Section 138 of the N.I.Act. Therefore, the presumption under Section 139 of N.I.Act is available in favour of the complainant. There is absolutely no material before the court to rebut the said presumption. In the said circumstances, it has to be held that the appellant succeeded in** CRL.A.No. 511 of 2007 -12- **establishing that the accused committed the offence under Section 138 of the N.I.Act and consequently, the judgment and order passed by the court below acquitting the accused under Section 255 (1) Cr.P.C cannot be sustained. In view of the above, the finding by the court below that the complaint is false, cannot be correct and consequently, the direction to initiate proceedings against the appellant under Section 250 Cr.P.C cannot be sustained.** **11. Having gone through the relevant inputs, I am satisfied that the complainant could establish that the accused committed the offence under Section 138 of the N.I.Act. In the said circumstances, I convict the accused under Section 138 of the N.I.Act. The accused is presently aged 51 years. Considering the** CRL.A.No. 511 of 2007 -13- **facts and circumstances of the case, including the amount covered by Ext.P1 cheque and also taking into consideration of the fact that there is no appearance for the accused before this Court even after the service of notice, I am inclined to take a lenient view in the matter of sentence. Accordingly, the accused is sentenced to a fine of Rs.1,25,000/- (Rupees one lakh twenty five thousand only) and in default to simple imprisonment for one month, to meet the ends of justice. It is ordered accordingly. If the fine amount is realised, the entire amount shall be given to the appellant as compensation under Section 357(1)(b) Cr.P.C.** **In the result, this appeal stands allowed as above.** CRL.A.No. 511 of 2007 -14- **The second respondent/accused is granted** **three months to pay the fine.** **Sd/-** **B.SUDHEENDRA KUMAR JUDGE** Scl.2.11.