Padmanabhan v. Nasar and State

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934 CRL.A.No. 2023 of 2009 ( ) -------------------------- AGAINST THE JUDGMENT IN STC.2997/2007 DATED 17-08-2009 APPELLANT(S)/COMPLAINANT: ------------------------PADMANABHAN, S/O.VELU, 61 YEARS, PADMALAYAM,ERUPPE DESOM KARAKKAD AMSOM,KAVALAPPARA OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R. SREEHARI RESPONDENT(S)/ACCUSED & STATE: ------------------------------ 1.NASAR, S/O.SULAIMAN, 47 YEARS, POOKKATTUKUNNATH VEEDU PERUR AMSOM AND DESOM OTTAPALAM TALUK 2.STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA R1 BY ADV. SRI.JACOB SEBASTIAN R2 BY PUBLIC PROSECUTOR SMT.S.HIMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== CRL.APPEAL. No.2023 OF 2009 ==========================** Dated this the 9[th ] day of January, 2013 ## **JUDGMENT** This appeal is directed against the judgment of acquittal in S.T.No.2997 of 2007 passed by the Court of Judicial First Class Magistrate, Ottapalam. First respondent herein was the accused therein. The appellant herein filed a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act against the first respondent. The case of the appellant was that the first respondent/accused borrowed an amount of Rs.1,00,000/- from him and thereafter, in discharge of the said liability owing to the appellant, he issued Ext.P1 cheque for Rs.75,000/- and Ext.P2 cheque for Rs.25,000/-. Those cheques on presentation for encashment were dishonoured on the ground of insufficiency of funds. Thereupon, the appellant caused issuance of a statutory notice within the stipulated **Crl.A.2023/09** 2 time and despite the receipt of the same and expiry of the statutorily prescribed period, the amounts covered by the cheques were not paid. The complaint was filed in the said circumstances. 2. On his appearance before the court, the accused/first respondent was supplied with the copy of the complaint and the particulars of the offence were read over and explained to him and thereupon, he pleaded not guilty. 3. To prove the charge against the accused/first respondent, the appellant herein got himself examined as PW1 and one Sathish K. who was the Secretary of the Service Co-operative Bank, Perur was examined as PW2. Exts.P1 and P2 and X1 to X3 were also marked. After the closure of the complainant's evidence, the accused was questioned under section 313 of the Code of Criminal Procedure. Besides denying the incriminating circumstances the accused/first respondent submitted that the two cheque leaves along with the **Crl.A.2023/09** 3 cheque book and passbook maintained in A/C.No.1593 of Perur Service Co-operative Bank were lost from his possession and he had timely intimated it to the bank authorities with a further request to stop payment of any amount upon the lost cheque leaves. The case of the first respondent was that Exts.P1 and P2 cheque leaves were manipulated by the appellant herein and except the signatures thereon, all other entries were forged. After careful consideration of the evidence on record, the learned Magistrate found that the appellant herein had failed to prove that the cheques in question were issued in discharge of a legally enforceable debt owing to the appellant and as such he had failed to prove the ingredients to attract an offence under section 138 of the NI Act. Resultantly, the accused/first respondent was found not guilty and he was acquitted of the offence under section 138 of the NI Act under the provisions of section 255(1) Cr.P.C. This appeal has been filed against the said judgment of acquittal. 4. The appellant sought to challenge the judgment of **Crl.A.2023/09** 4 acquittal raising various contentions. It is contended that the lacuna, if any, in regard to details viz., date of handing over of Exts.P1 and P2 cheques in the complaint was made good while being examined as PW1 by deposing that the amount of Rs.1,00,000/- was borrowed by the accused/the first respondent on 30.10.2006 and cheques were given to him by the accused on that day itself. The further contention is that Ext.X3 letter dated 14.10.2003 issued by the accused to the Bank regarding loss of cheque book containing cheque leaves bearing Nos.211 to 220 and requesting not to effect payment on presentation of above cheques would reveal that he had given Exts.P1 and P2 cheques to the appellant dishonestly and with fraudulent intention. According to the appellant, Ext.P10 lawyer notice and Ext.P11 reply notice were not properly appreciated by the court below. 5. There is absolutely no case for the appellant that the court below has incorrectly marshelled the evidence in the judgment though he got a case that they were not properly appreciated. The appellant **Crl.A.2023/09** 5 who was examined as PW1 deposed that the first respondent/accused borrowed an amount of Rs.1,00,000/- from him on 30.10.2006 and it was in discharge of the said legally enforceable debt that the accused had issued Exts.P1 and P2 cheques respectively for Rs.75,000/- and Rs.25,000/- on that day itself. There cannot be any doubt with respect to the position that the essential ingredients to attract the offence under section 138 of the NI Act is issuance of a cheque in discharge of a legally enforceable debt and its dishonour on presentation on any of the grounds which would attract an offence under section 138 of the NI Act. The trial court appreciated the evidence of PW2, Secretary of Perur Service Co-operative Bank. PW2 produced Ext.X1 ledger extract pertaining to account No.1593 viz., the account maintained by the first respondent with Perur Service Co-operative Bank, Ext.X2 which is the copy of the relevant page of the cheque return register and also Ext.X3 which is the copy of the letter dated 14.10.2003 submitted to the bank by the first respondent/accused. The evidence of PW2 would clearly establish that the cheques in question viz., **Crl.A.2023/09** 6 Exts.P1 and P2 carried Nos.213 and 214 respectively and as per Ext.X3 letter dated 14.10.2003, first respondent/accused intimated the bank regarding the loss of the cheque leaves bearing Nos.211 to 220 with a specific request to the bank not to effect payment upon anyone of the cheques so serially numbered. The appellant herein cannot dispute the said evidence tendered by his own witness. In fact, there is no serious challenge against the evidence tendered by PW2. Thus, evidence of PW2 would reveal that as early as on 14.10.2003, as per Ext.X3 letter, the accused has intimated bank regarding the loss of the cheque leaves bearing Nos.211 to 220 including Exts.P1 and P2 cheques and requested the bank not to effect payment on anyone of the cheques so serially numbered. When once it is proved that the cheque leaves were so lost and that he had made such a request to the bank, in the absence of cogent evidence to show that subsequently, Exts.P1 cheque dated 17.4.07 and P2 cheque dated 30.4.07 which were said to have been lost from the possession of the accused were executed and issued by him. It is also in evidence that on coming to **Crl.A.2023/09** 7 know that PW1 was attempting to manipulate the lost cheque leaves the first respondent caused issuance of Ext.P10 notice dated 25.4.2007 to the appellant demanding to return the lost cheques. In the absence of evidence regarding execution and delivery Exts.P1 and P2 cannot be construed as cheques in the strict sense and they would remain only as cheque leaves. Admittedly, the first respondent denied the execution of Exts.P1 and P2 cheques. He had not only denied the transaction with the appellant but disputed the execution of Exts.P1 and P2 cheques and further contended that the cheque leaves lost from his possession were manipulated by the appellant and the factum they were lost is, in fact, proved through PW2. When execution of a cheque is denied by the accused and the case of the accused gains substantial evidence from the evidence of PW2, the appellant had to prove the execution of Exts.P1 and P2 cheques to earn the benefit of the presumptions available under section 118 and 139 of the NI Act. 6. As already noticed, the accused/first respondent denied the **Crl.A.2023/09** 8 very execution of Exts.P1 and P2 cheques and his explanation offered while being examined under section 313 Cr.P.C gained support from the evidence of PW2. In the said circumstances, the burden to prove the very execution of Exts.P1 and P2 cheques was with the appellant. When execution of a cheque is denied, certainly the concerned complainant can prove its execution by resorting to recognized methods. In the decision in **Santhi v. Mary Sherly (2011 (3) KHC 22),** this Court elaborately considered the manner in which execution of a cheque could be proved. Evidently, the appellant herein had failed to prove the execution of Exts.P1 and P2 cheques relying on any of the methods permissible under law. A feeble attempt was made by the appellant to discharge that burden. He had deposed that the first respondent came to his residence and borrowed an amount of Rs.1,00,000/- on 30.10.2006 and thereafter issued Ext.P1 and P2 post dated cheques on that day itself. A natural question crop up in such circumstances is why the appellant accepted two cheques on 30.10.2006 when the amount of Rs.1,00,000/- was given by him to the **Crl.A.2023/09** 9 accused on 30.10.2006. At any rate, the burden was on the appellant to prove the execution and handing over of the cheques. In view of the evidence of PW2 and the specific case of the appellant while being examined under section 313 Cr.P.C, the appellant could not have wriggled out of his burden to prove the execution of Exts.P1 and P2 cheques. A scanning of the evidence in this case would reveal that the appellant did not have a case that he had actually witnessed the execution of Exts.P1 and P2 cheques. As stated earlier, he had also not attempted to prove the execution of Exts.P1 and P2 by resorting other methods admissible for proving the execution of the cheque. In short, in the case on hand, the first respondent had not admitted the execution of Exts.P1 and P2 cheques and at the same time, the appellant herein had failed to prove the execution of the said cheques. In such circumstances, going by the decision of this Court in **Gopan v. Tonny Varghese (2008 (1) KLT 257),** the appellant is not entitled to get the benefit of presumption under sections 118 and 139 of the NI Act. In such circumstances, the appellant was to let in evidence to **Crl.A.2023/09** 10 prove the original transaction apart from his own assertion that the accused/first respondent came to his residence on 30.10.2006 and borrowed Rs.1,00,000/- and handed over Exts.P1 and P2 post dated cheques carrying the dates 17.4.2007 and 30.4.2007 respectively. The contention of the appellant is that the finding of the court below that there was no mention in the complaint on the date of handing over of Exts.P1 and P2 cheques is incorrect as he had specifically stated in the complaint the date on which the amount was borrowed and the fact that the post dated cheques were issued on that date is of no significance and consequence in the facts of this case especially when it is established by the prosecution witness itself that cheques issued from the Perur Service Co-operative Bank including the cheque leaves bearing Nos.213 and 214 (marked in this case as Exts.P1 and P2) were lost from his possession and when complainant/appellant failed to prove the execution of the cheques and its delivery. The mere assertion on the part of the appellant that the accused came to his residence and borrowed Rs.1,00,000/- and thereafter issued two post **Crl.A.2023/09** 11 dated cheques with dates 17.4.2007 and 30.4.2007 cannot be believed in the absence of any evidence corroborating the same. The uncorroborated testimony of the appellant is certainly not sufficient to displace the weighty evidence of the defence which, indisputably stands corroborated by the evidence of PW2 and which is sufficient to cast suspicion on the case of the appellant. In such circumstances, finding of the court below that the appellant herein had failed to prove the execution of Exts.P1 and P2 cheques and therefore, is not entitled to the benefit of presumption under section 139 of the NI Act cannot be said to be against the weight of evidence or vitiated by any error in law. The consequential finding that the appellant herein had failed to prove that Exts.P1 and P2 cheques were issued in discharge of a legally enforceable debt also cannot be said to be illegal. When the respondent had taken a defence and proved it by himself and above all, through the evidence of prosecution witness, at any rate, the prosecution has to displace it through weighty evidence lest, ultimately it will fall within the area of doubtful circumstances and in **Crl.A.2023/09** 12 which event, the beneficiary can only be an accused. In short, the appellant had failed to make out a prima facie case warranting appellate interference. In such circumstances, the appeal is liable to fail and accordingly, it is dismissed. Sd/- **C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.A.2023/09** 13 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **Crl.A.2023/09** 14