P. Thankaraj v. A.P. Rajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930** **CRL.A.No.24 of 2008 (C)** **-----------------------------** **AGAINST THE ORDER IN CRL.L.P.1259/2007 Dated 13/12/2007 ST.283/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD.** **....................** ## **APPELLANT: COMPLAINANT** **--------------------------------** **P.THANKARAJ, S/O. PAZHANIAPPAN, PROPRIETOR, PAZHANIAPPA CHIT AND FINANCE, KPD BUILDING, OLAVAKKODE, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENTS: ACCUSED & STATE** **----------------------------------------** **1. A.P.RAJAN, S/O. LATE PONNUSWAMI(LINEMAN), ANAMARI, KOLLENGODE, PALAKKAD.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## K.P.BALACHANDRAN, J. -----------------------------------------------Crl. Appeal No.24 of 2008 -----------------------------------------------Dated this the 25[th] day of March, 2008 ## **JUDGMENT** The complainant in S.T.283/06 on the file of the Judicial First Class Magistrate's Court-I, Palakkad is the appellant. He assails in this appeal the judgment of the court below acquitting the first respondent of offence under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 2. The appellant filed complaint in the court below alleging that towards an amount of Rs.1,50,000/- due from the first respondent to him the first respondent issued Ext.P1 cheque dt.16/11/05 drawn on his account at the Palakkad branch of Bank of India; that on presentation of the cheque for collection through his bankers namely the South Malabar Gramin Bank, Palakkad branch it was returned dishonoured by the drawee bank under Ext.P2 memorandum assigning the reason “funds Crl. Appeal No.24 of 2008 -2- insufficient”; that the cheque with the said memorandum was forwarded by his bankers to him under Ext.P3 memorandum; that thereupon the original of Ext.P4 notice was issued to the first respondent through lawyer on 01/12/05 informing him of the dishonour of the cheque and demanding payment of the amount covered by the cheque and that was accepted by the first respondent under Ext.P6 postal acknowledgment card, but he has not paid up the amount covered by the cheque either within the statutory period or ever thereafter and has also not sent any reply to the said notice; and that he has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the first respondent in the court below pursuant to receipt of summons he was served with copies of all relevant records in the case and he was questioned by the Magistrate reading over the particulars of the offence and explaining it Crl. Appeal No.24 of 2008 -3- to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the appellant, PW1 is examined and Exts.P1 to P6 were got marked. On the appellant closing his evidence, the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he had joined in a kuri conducted by the appellant ten years back and he prized the kuri for Rs.25,000/- and while drawing the prize amount a signed cheque leaf was given by way of security; that he has paid up all instalments in the kuri and thereafter he went to Gulf and that the cheque had not been written by the appellant. However, he did not adduce any evidence in defence. -4- Crl. Appeal No.24 of 2008 5. The court below considered the case in the light of the evidence adduced as aforesaid and considering that the appellant has given evidence that he was advancing the amount in his personal capacity and not on behalf of the chits and finance of which he was the proprietor and has also admitted that no amount is due from the first respondent to the chits and finance run by him, came to the conclusion that Ext.P1 cheque is not one issued in discharge of any liability to the appellant/Company and consequently, acquitted the first respondent of offence punishable under Section 138 of the N.I. Act. 6. The court below has miserably gone wrong in appreciating the case alleged. The court below considered the case as if one filed on behalf of Pazhaniappa Chits and Finance of which the appellant is the proprietor and that Ext.P4 notice was also being issued on behalf of the said chits and Crl. Appeal No.24 of 2008 -5- finance. In fact Ext.P4 notice was sent and the complaint was filed by the appellant Thankaraj, son of Pazhaniappan and not by Pazhaniappa Chits and Finance though it is true that the appellant/Thankaraj has described his address as proprietor Pazhaniappa Chits and Finance of Olavakkode, Palakkad district. By describing the status of the appellant as proprietor of Pazhaniappa Chits and Finance, it does not mean that the complaint is filed for and on behalf of the said Pazhaniappa Chits and Finance. In fact, the complaint is filed by the appellant himself and the ground on which the court below found that the complaint is not maintainable is not tenable. 7. However, as the appellant has adduced all evidence that he wanted in the court below and the first respondent did not want to adduce any evidence in defence, I do not see any reason why the matter has to be remitted Crl. Appeal No.24 of 2008 -6- back to the court below as desired by the counsel for the appellant and the appeal which is a continuation of the proceedings has to be disposed of on the evidence adduced in the case. 8. In the complaint there is no mention as to the date on which an amount of Rs.1,50,000/- was advanced by the appellant to the first respondent. The date on which Ext.P1 cheque issued is also not mentioned. It is only in evidence of PW1 that it comes out for the first time that he was advancing Rs.1,50,000/- on 22/10/05 to the first respondent with whom he has got acquaintance for the last 8-9 years through a common friend Mani. It is also his case that while advancing the amount to the first respondent the said Mani and one another Rajan were also present. In cross examination PW1 stated also that he is examining the said Mani who according to him, was present also when the first -7- Crl. Appeal No.24 of 2008 respondent issued Ext.P1 cheque but neither the said Mani nor Rajan who is stated to have been present while the appellant advanced money to the first respondent is examined as a witness. Appellant as PW1 has deposed in cross examination that he did not receive any record from the first respondent while advancing Rs.1,50,000/- on 22/10/05. The first respondent is a Gold Smith and PW1 himself admitted that such a huge amount was being advanced to the first respondent for the first time. It is unbelievable in the circumstances, that the appellant would advance such a huge amount to the first respondent without obtaining any record whatsoever. According to PW1, the first respondent was coming over to his house on 15/11/05 with a cheque leaf duly written up with date 16/11/05 and signing it in his presence. Even PW1 has admitted that all writings in Ext.P1 cheque is in black ink and it is only the signature of the drawer, in Crl. Appeal No.24 of 2008 -8- blue ink and further that the cheque leaf is a very old one. No doubt, the suggestion put to him in cross examination that a blank signed cheque leaf was being received by way of security while disbursing the prize amount in kuri; that other than that the first respondent had not received any amount from the appellant and as alleged no cheque had been issued in discharge of any such debt and that the cheque issued by way of security was being misused to bring into existence Ext.P1 is denied by him. But all the same, there is no evidence in proof of due execution of Ext.P1 cheque by the first respondent except the interested testimony of PW1. Further, suspicion looms large in the circumstances of this case as advancing of Rs.1,50,000/- to the first respondent who is a Gold Smith and that too such a huge amount for the first time without obtaining any record by the appellant cannot be believed. The witnesses who were Crl. Appeal No.24 of 2008 -9- alleged to have witnessed the transaction are not examined. The cheque leaf used for Ext.P1 is a very old one as seen from Ext.P1 and also as admitted by PW1. The writings therein are in black ink and only the signature of the first respondent is in blue ink. If the first respondent is in the habit of using a pen and he has written the contents in Ext.P1 cheque certainly there is no reason why the ink should differ in the signature affixed in Ext.P1 from the writings in Ext.P1. It is further worthy to note that the writings in Ext.P1 cheque are of a person who has a developed hand writing whereas the signature in Ext.P1 as also the writing of the name of the first respondent does not bear that character. In the absence of evidence of due execution of Ext.P1 cheque by the first respondent and in the absence of convincing evidence as regards advancing of Rs.1,50,000/by the appellant to the first respondent Crl. Appeal No.24 of 2008 -10- merely because Ext.P1 is seen made up on a cheque leaf signed by the first respondent on a cheque leaf issued in an account maintained by him with the drawee bank, it cannot be presumed that the cheque in its present form has been issued by the first respondent to the appellant in discharge of any debt or other liability. It is the definite case of the appellant that he is proprietor of Pazhaniappa Chits and Finance. It is the case of the first respondent that he was a subscriber in the kuri conducted by the appellant about ten years back and while receiving the prize amount a signed blank cheque leaf was received by the appellant from him by way of security and that it had not been returned despite his discharging the entire debt by payment in instalment in the kuri; and that thereafter he had gone to Gulf and the cheque leaf had not been written by the appellant. The appellant has no case that the first respondent was Crl. Appeal No.24 of 2008 -11- never a subscriber in the kuri of which he was the proprietor. The contention of the learned counsel for the appellant that the first respondent should have adduced evidence to establish that he was a subscriber and that he prized the kuri and received the amount furnishing a blank cheque by way of security and that as the first respondent has failed to establish that aspect, in view of presumption under Section 139 of the N.I. Act it has to be held that the appellant has established his case is however, not tenable. The first respondent who was a subscriber in a kuri ten years back cannot be expected to maintain the entire records at this length of time and produce it before court to establish his defence. The appellant has also not denied the case of the first respondent that he was a subscriber to the kuri conducted by Pazhaniappa Chits and Finance of which he was the proprietor and that he prized the amount Crl. Appeal No.24 of 2008 -12- and drew the amount furnishing a blank signed cheque by way of security while giving evidence as PW1 though he denied the suggestion put to him that Ext.P1 cheque was being made up on a cheque leaf that had been so issued by way of security. The Apex Court has held in _Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC)_ that the presumption under Section 139 of the N.I. Act is not regarding the existence of a debt or of existence of a legally recoverable debt, but that the presumption in favour of the holder of the cheque is only that the same has been issued for discharge of any debt or other liability. When so much alone is the presumption under Section 139 of the N.I. Act unless the appellant is able to establish on evidence that he advanced Rs.1,50,000/- to the first respondent and it was in discharge of that debt that Ext.P1 cheque is issued, he cannot make out a case of the first respondent having Crl. Appeal No.24 of 2008 -13- committed an offence punishable under Section 138 of the N.I. Act. Thus, though the first respondent was not liable to be acquitted for the reasons stated by the court below, he is entitled to an acquittal for the reasons discussed above. Thus, there is no merit in this appeal and this appeal deserves only to be dismissed confirming the acquittal of the first respondent by the court below. 9. In the result, I dismiss this criminal appeal. K.P.BALACHANDRAN, JUDGE kns/-