Pappayil Kuttiappu v. State of Kerala and ABOOBACKER

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 CRL.A.No. 882 of 2001() ----------------------CC.836/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... APPELLANT(S): -------------- PAPPAYIL KUTTIAPPU, S/O. APPUKUTTY, VALLIKUNNU AMSOM. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. ABOOBACKER, S/O. MOHAMMED. CHELAMBRA. R1 BY P.P. SMT. K.L. LAKSHMI RANI. SRI.P.VIJAYA BHANU FOR R2 SRI.M.REVIKRISHNAN FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.2.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.A. No.882 OF 2001 ---------------------------------------------Dated, 11[th] February, 2009. ## JUDGMENT Complainant is the appellant, as he is aggrieved by the order of acquittal under section 255(1) Cr.P.C. issued by the Court OF Judicial First Class Magistrate, Parappanangadi in a prosecution for the offence under section 138 of the Negotiable Instruments Act. 2. The case of the appellant/complainant is that both the complainant as well as the accused are friends and the accused borrowed a sum of Rs.1,90,000/- from the complainant to purchase some property and promised to repay the amount within one month. Since the amount was not repaid within the time assured, the complainant approached the accused demanding the amount and then the accused issued a cheque dated 12.2.1998 for an amount of Rs.1,90,000/-. When the cheque was presented for encashment on 18.2.98, the same was returned stating ‘funds insufficient’, and consequently, the complainant caused to send a demand notice to the accused and though the accused accepted the notice, no amount was paid and therefore, the complainant CRL.A. 882/01 ## **-:2:-** approached the court by filing a private complaint to prosecute the accused for the offence under section 138 of the N.I.Act. On the basis of the sworn statement of the complainant, C.C.No.836/98 was instituted in the court below and on appearance of the accused, particulars alleged in the complaint were read over and explained to him and he pleaded not guilty which resulted in the further trial during which the complainant himself was examined as PW1 and Exts.P1 to P6 documents were marked. The incriminating circumstances, which emerged during the evidence of the complainant, when put to the accused under section 313 of Cr.P.C., he denied the same. The accused submitted written statement under section 313 Cr.P.C. The case put forward by the accused through such statement is to the effect that during the year 1992, he had borrowed a sum of Rs.50,000/- from the complainant and at the time of borrowing the said loan, he had issued a blank signed cheque as security for the said loan. It is also stated that the loan amount, though discharged by giving the amount through one Thondikodu Cheriya Mohamed, there was a dispute regarding the interest and the cheque was not returned and because of the said dispute, the CRL.A. 882/01 **-:3:-** complainant and accused were in inimical terms. Thus according to the accused, out of the said rivalry and animosity, the complainant preferred the present complaint by misusing the cheque which was given as a security connected with the transaction in 1992 between the accused and the complainant. During the time of the defence evidence, the accused examined DWs 1 and 2 and also produced Exts.D1 and D2 documents. On the basis of the rival pleadings and the materials on record, the trial court formulated 4 issues for its consideration and finally found that the version of PW1 that the amount was given on 3.1.98 cannot be safely relied on. According to the court, since the execution of Ext.P1 cheque is admitted, it can only be held that Ext.P1 was given in some other transaction other than the transaction alleged by PW1. Therefore, the court found that Ext.P1 is not supported by consideration as stated by PW1. On the basis of the above observation and finding, the court below further held that the accused has rebutted the presumption available to the complainant under sections 118 and 139 of the N.I.Act. Thus it is concluded that it cannot be held that Ext.P1 was supported by consideration and that it was given in discharge of any debt or other CRL.A. 882/01 ## **-:4:-** liability as alleged by the complainant. Accordingly, the accused is found not guilty and he is acquitted. It is the above finding and order of acquittal challenged in this appeal . 3. I have heard Sri P.S. Sreedharan Pillai, the learned Counsel appearing for the appellant and Sri P.Vijayabhanu, the learned counsel appearing the 2[nd] respondent. 4. When PW1 was examined, he had deposed in terms of his case regarding the transaction. Ext.P1 cheque, Ext.P2 memo, Ext.P3 memo, Ext.P4 lawyer notice, Ext.P5 series and Ext.P6 reply notice were marked through PW1. But when the complainant adduced evidence as PW1, he had deposed before the court that the loan amount was given to the accused on 3.1.98. It is further stated that the accused had assured that the amount will be returned within one month and as he failed to repay the amount within the time stipulated, he approached the accused and then he issued the cheque for Rs.1,90,000/- showing the date as 12.2.98. The above evidence is inadmissible. In the complaint, there is no pleadings that the loan amount was given on 3.1.98. In the demand notice also, the date of actual transaction was not shown. So it CRL.A. 882/01 ## **-:5:-** is impermissible to adduce evidence in support of the plea which is not taken. During cross examination, PW1 stated : “ . പഠന� വ�റ� ക�ട�യ പണ� വ�ട�ല വചത�യ�ര�ന� ആ പണമ�ണ� കക�ട�തത�.” Thus according to PW1, the amount given to the accused was the amount raised out of the sale of his property. He had also stated that the property was sold to one Rehman. During the examination he had further deposed before the court that the cheque in question was obtained as security since the amount parted was a huge amount. This is an entirely new case which is neither pleaded in the complaint nor stated in the demand notice. So going by the deposition of PW1 regarding the transaction and the pleadings in the complaint and also the statement in the demand notice, it can be seen that at the time of trial, the complainant put forward an entirely different and new case. 5. The defence set up during the trial is to the effect that admitting the transaction that took place during the year 1992 with respect to Rs.50,000/-. According to the accused, during the year 1992 he obtained a loan of Rs.50,000/- from the complainant and the CRL.A. 882/01 ## **-:6:-** same was repaid by two instalments. That is the case raised by the defence from the very beginning itself. In Ext.P6 reply notice when the accused denied the transaction claimed by the complainant, it is specifically stated about the loan transaction between the complainant and accused with respect to Rs.50,000/and according to Ext.P6 reply, the entire account was settled by 18.7.97. It is also stated in Ext.P6 that towards the settlement of the said account, the accused paid Rs.40,000/- on 27.3.94 and another Rs.10,000/- on 8.5.96 and for raising the said amount , he had sold his lorry bearing Regn.No.KL 11A 4796. It is also submitted that since there was a dispute regarding interest with respect to the said transaction, the complainant and accused were at loggerheads. The trial court, after considering the evidence adduced by the complainant and also after considering the defence set up by the accused, came into the conclusion which indicated earlier. 6. The learned counsel submitted that the accused has admitted the transaction, execution of the cheque and issuance of the same and therefore, the presumption under section 139 is CRL.A. 882/01 ## **-:7:-** available in favour of the complainant and the same was not rebutted by the defence by adducing cogent and satisfactory evidence Therefore, according to the learned counsel, the finding arrived on by the court below is absolutely unsustainable and liable to be set aside. It is also the case of the counsel for the appellant that the accused has admitted the issuance of the cheque as security. If that be so, the offence under section 138 of the N.I.Act will be attracted if the cheque, even though, was given as security, the same is bounced for the reasons mentioned in section 138 of the N.I.Act. It is also the case of the counsel that though the accused has taken a plea of discharge of the debt, the same is not substantiated by adducing evidence. Hence, according to the learned counsel, the trial court ought to have convicted the accused accepting the case of the complainant. 7. Per contra, the learned counsel appearing for the respondent/accused submitted that the date of payment of the amount involved in the transaction claimed by the complainant is not stated either in the notice or in the complaint and, therefore, the above discrepancy is sufficient to reject the claim of the CRL.A. 882/01 ## **-:8:-** appellant/complainant. It is also pointed out that the deposition of PW1 is to the effect that the cheque in question was given as a security was not stated either in the complaint or in the notice and therefore it will amount to contradiction which will go against the root of the case of the complainant. It is also submitted that the inks of the signature and handwriting seen in the cheque in question are different and therefore the complainant has miserably failed to prove the execution and issuance of the cheque. 8. I have carefully considered the contentions advanced by both the counsels and also perused the records and materials. The Apex Court, in the decision reported in **Krishna Janardhan Bhat v. Dattatraya Hegde** (2008 (1) KLT 425 (SC), has held that existence of a legally recoverable debt is not a matter of presumption under section 139 of the N.I.Act and it does not raise a presumption in regard to existence of a debt also. This court, in the decision reported in **Johnson Scaria v. State of Kerala** (2006(4) KLT 290), has held that admission of signature in a cheque goes a long way to prove due execution. It is also held that possession of the cheque by the complainant similarly goes a long way to prove issue of the CRL.A. 882/01 ## **-:9:-** cheque. The burden rests on the complainant to prove execution and issue. But under section 114 of the Evidence Act, appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered. In view of the above two decisions, merely holding a cheque itself is not sufficient for the holder to claim the benefit of statutory presumption under section 139 of the Act. It is for the holder to plea and prove that there was a debt or liability due to the holder from the accused and the cheque in question was issued for the discharge of the said debt or liability . So the entire transaction has to be specifically pleaded and proved. In the present case, the case of the complainant in the compliant is to the effect that the accused borrowed a sum of Rs.1,90,000/- and towards the discharge of said debt, the cheque was issued. But no date was mentioned either in the complaint or in Ext.P4 lawyer notice. It is true, the signed cheque of the accused is in the hands of the complainant and according to the complainant, the said cheque was issued by the accused towards the discharge of the above debt connected with the above CRL.A. 882/01 ## **-:10:-** transaction. But the case of the accused is that the cheque in question was issued by him to the complainant when he obtained a loan of Rs.50,000/- from the complainant during the year 1992 and the same was given as a security in the said transaction. It is also the case of the accused that that transaction was completely settled by paying back the entire amount and there was some dispute with respect to the interest and because of that dispute, they were not in good terms. The learned counsel for the appellant submitted that by issuing the cheque and by admitting the signature, the accused has admitted the transaction, execution and issuance of the cheque etc. That submission is not acceptable. When the complainant approached the court by claiming the transaction that took place during the year 1998, the accused disputed the same and according to the accused, the transaction was during the year 1992. Therefore, when the complainant approached the court by filing the complaint claiming the transaction, the court has to examine whether the complainant has succeeded in establishing the alleged transaction and the execution of the cheque in question. On such examination it can be seen that CRL.A. 882/01 ## **-:11:-** due to the contradictory versions of PW1- the complainant, that too, an improvised version, does not seen place in the complaint itself, is quite unbelievable. In the complaint, there is no case that the cheque in question was given as security. But when PW1 was examined he said that the cheque in question was given as security and the same was given at the time when he parted with the amount to the accused. But in the complaint as well as in the Ext.P4 demand notice, according to the complainant, the cheque in question was given by the accused during the year 1998 and approached the accused pointing out the expiry of the time assured by the accused for the repayment of the amount. It is also relevant to note that PW1 deposed before the court that he got the amount by disposing of his property and the said amount was given to the accused on his demand. But by producing Ext.D1 document, which got marked through DW1, the defenece has adduced evidence to the effect that why the property was disposed of two years back to the date of the alleged transaction. Therefore, the court is of the opinion that the explanation offered by the complainant for the raising of the amount that, it is the sale CRL.A. 882/01 ## **-:12:-** proceeds of the property connected with the transaction that taken place two years back and kept in the house till the accused demanded the loan amount, is quite unbelievable. So the above finding of the court below is absolutely correct and no interference is called for. Thus the above materials are in no way helpful for the complainant to establish that the accused had executed Ext.P1 cheque and issued the same to the complainant towards the discharge of the debt of Rs.1,90,000/- as claimed by the complainant. 9. It is also relevant to note that the learned counsel submitted that as the accused has admitted that Ext.P1 cheque was issued as a security,the offecne is completed. The above submission also not seems to be correct. It is true that the accused has admitted that the cheque in question was issued as security, but not for the transaction claimed by the complainant, but as a security for the loan availed by the accused during the year 1992. Therefore, the said plea also fails. Another point raised by the learned counsel is that the defence did not substantiate the plea of discharge of the loan. The fate of the above point is also similar to that of the CRL.A. 882/01 **-:13:-** previous conclusion. The accused pleaded that the loan availed by him during 1992, viz. Rs.50,000/- was paid back to the complainant by way of two instalments. That he had specifically pleaded in Ext.P6 reply notice and also by examining DW2. The same was substantiated. So, the discharge of the loan, pleaded by the accused is not with respect to the transaction claimed by the complainant. In the above factual background and since the complainant has even prima facie failed to establish the the debt or liability and execution and issuance of the cheque, he is not entitled to get the statutory benefit under section 139 of the Act. So the complainant miserably failed to establish the case against the accused. Even though the complainant has not established a prima facie case and there is no burden on the accused to rebut the presumption, the defence by adducing evidence succeeded in establishing a probable case. In **Krishna Janardhan Bhat’s case(cited supra),** the Apex Court has held that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. In the very same decision, it is further held that CRL.A. 882/01 **-:14:-** whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is ‘preponderance of probabilities’. It is further held that inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. The Apex Court has also held in the decision in **Narayana Menon v. State of Kerala** (2006(3) KLT 404)(SC), the Apex Court has further held that the accused is only to discharge the initial onus of proof and he is note required to disprove the prosecution case. 10. The Apex Court while considering the presumption under section 118 and 139 of N.I.Act discussed about the scope and ambit as per its decision in M/s. Kumar Exports v. M/s.Sharma Carpets (2009(1) Supreme 231). In the above decision the Apex Court has held that **“** the accused in a trial under section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration CRL.A. 882/01 ## **-:15:-** and debt is so probable that a prudent man ought to suppose that no consideration and debt existed”. It is also held that “to disprove the presumptions, the accused should bring on record such fact and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable” The Apex court further observed: “Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the The accused also complainant. may rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option CRL.A. 882/01 ## **-:16:-** to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory **”** . notice and evidence adduced by the complainant during the trial In the light of the above settled legal position, I am of the view that the accused has rebutted the presumption which is otherwise available to the complainant under section 139 of the N.I.Act. 11. The appellant now seeks interference of this Court in an order of acquittal passed by the trial court. In **Ghureylal v. State of U.P.** (2008(4) KLT SN17(C.No.17)(SC), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the same decision, the Apex Court has categorically stated that the appellate court can interfere only for very substantial and compelling reasons. The same proposition is reiterated in the decision reported in **Batcu Venkateshwarlu and Ors v. Public Prosecutor H.C. of A.P.** (2009 (1) Supreme 67) . In the said decision, it is held that in case of CRL.A. 882/01 ## **-:17:-** acquittal, there is a double presumptions in favour of the accused, unless there is a substantial and compelling reason for holding that the trial court was wrong, the appellate court shall not interfere with the order of acquittal. Going by the materials on record, and the impugned judgment, I am of the view that no compelling or substantial reasons are made out to interfere with the order of acquittal. In the result, there is no merit in the appeal and accordingly, the same is dismissed. ## **V.K.MOHANAN, JUDGE.** kvm/- CRL.A. 882/01 ## **-:18:-** V.K.MOHANAN, J. CRL.A.NO.882 OF 2001 Judgment Dated:11.2.2009