P.P. Joseph v. Jose Philip and State

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 CRL.A.No. 119 of 2008 ------------------------------------- CRA.149/2004 of ADDL.SESSIONS COURT (SPL.COURT), KOTTAYAM CC.153/2002 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... ## APPELLANT/IST RESPONDENT/COMPLAINANT: P.P.JOSEPH, VAYALIL PUTHENPARAMBIL HOUSE, AMAYANNOOR P.O., AYARKUNNUM VILLAGE, KOTTAYAM. BY ADV. RAMAKUMAR (SR.) SRI.M.MANOJKUMAR (CHELAKKADAN) SRI.R.JAYACHANDRAN ## RESPONDENTS/APPELLANT & R1/ACCUSED & STATE: 1. JOSE PHILIP, ILLICKAL HOUSE, ANIKKADU P.O., KOTTAYAM. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K.P. Balachandran, J. --------------------------- Crl.A.No. 119 of 2008 --------------------------- ## **JUDGMENT** Appellant is the complainant in C.C.No.153/02 on the file of the Judicial First Class Magistrate's Court-II (Mobile), Kottayam. He assails in this appeal the acquittal of the first respondent of offence under Section 138 of the Negotiable Instruments Act by the Additional Sessions Judge, Kottayam vide judgment in Crl.A.No. 149/04, reversing the conviction of the first respondent by the learned Magistrate vide judgment in C.C.No.153/02. 2. Appellant filed complaint before the Judicial First Class Magistrate's Court-III, Kottayam, inter alia, on the allegations that the first respondent borrowed an amount of Rs.75,000/- from him on the promise that it would be repaid on 15.5.2001 and towards discharge of that debt, the first respondent issued Exhibit P1 cheque to him dated 1.5.2001 drawn on his account maintained with CRA 119/08 2 the Kottayam Branch of Nedungadi Bank Ltd.; that on presentation of the cheque through Mannarcadu Branch of the Kottayam Co-operative Bank Ltd., it was dishonoured for reason of insufficiency of funds in the account of the first respondent and the appellant received intimation of dishonour on 21.8.2001; that thereupon the original of Exhibit P4 notice was issued to the first respondent through Lawyer under Exhibit P5 postal registration receipt, intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque; that the first respondent accepted the notice under Exhibit P6 postal acknowledgment card, but, he has not cared to make payment of the amounts covered by the cheque either within the statutory period of ever thereafter and that thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate, before whom the complaint was so filed, recorded the sworn CRA 119/08 3 statement of the appellant/complainant and registered the case on the file of his Court as C.C.No.1255/01, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. Thereafter, the case was transferred to the Judicial First Class Magistrate's Court (Mobile), Kottayam, where the case was re-filed as C.C.No.153/02. 4. On appearance of the first respondent in the court below pursuant to issuance of summons, he was served with copies of all relevant records in the case and was questioned by the learned Magistrate, reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. On the side of the appellant/complainant, he tendered evidence as PW1 and got the Manager of the District Co-operative Bank, Kottayam examined as PW2. Exhibits P1 to P11 were also got marked on the side of the appellant/complainant. On the CRA 119/08 4 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 borrowed an amount of Rs.70,000/- from the appellant in October 1998 and issued a cheque for Rs.75,000/- without dating it; that an amount of Rs.86,400/- was altogether paid to the appellant on 7.1.2000 in re-payment of the loan with interest, but the appellant did not return the cheque and offered to give it later and it is that cheque that is produced as Exhibit P1. According to him, no amount is due to the appellant. On the defence side the first respondent gave evidence as DW1 and another witness was examined as DW2 and Exhibits D1 to D4 were got marked. 6. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid; found the first respondent guilty of the offence punishable under Section 138 of the Negotiable CRA 119/08 5 Instruments Act, convicted him and sentenced him thereunder to undergo simple imprisonment for a term of three months and further directed to pay an amount of Rs.75,000/- by way of compensation to the appellant and in default of payment of fine, to undergo simple imprisonment for a further term of one month. 7. The first respondent filed appeal before the Sessions Division, Kottayam as Crl.A.No.149/04 and the learned Additional Sessions Judge, who heard the appeal, has set aside the conviction and sentence so passed by the learned Magistrate against the first respondent and acquitted him. Hence, this appeal by the aggrieved appellant. 8. It is contended before me by the learned counsel for the appellant that the first appellate court has not considered and appreciated the case in the proper perspective and has acquitted the first respondent of offence under Section 138 of the Negotiable Instruments Act, without proper evaluation of the evidence and appreciation of CRA 119/08 6 rival contentions of the parties. It is further contended that it can be seen on evidence that the case of the appellant is most probable and that the appellate court should not have reversed the conviction and sentence passed by the trial court against the first respondent. 9. There is no dispute that Exhibit P1 cheque was being dishonoured for want of sufficient funds in the account of the first respondent to honour the same. There is also no case for the first respondent that statutory formalities required for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act do not stand complied with in the instant case. **==> picture [398 x 13] intentionally omitted <==** complainant that the first respondent borrowed from him an amount of Rs.75,000/-. There is no mention either in the complaint or in the proof affidavit as to the date on which the amount was so borrowed by the first respondent. It is only in the crossexamination that he states that the first CRA 119/08 7 respondent was borrowing an amount of Rs.75,000/from him on 15.4.2001. According to him, it is in repayment of the said amount that Exhibit P1 cheque with date 1.5.2001 was issued to him. According to the first respondent, the borrowal was only of Rs.70,000/- and that was in October 1998 and in discharge of that amount cheque for Rs.75,000/- was issued without any date affixed thereon and that he has repaid the entire amount by paying by way of principal and interest, a total amount of Rs.86,400/- on 7.1.2000, but the appellant has not returned the cheque saying that it would be returned later and it is that cheque that is produced as Exhibit P1. 11. In Exhibit P1 cheque, the date 1.5.2001 is seen inserted effecting material alteration in the cheque as regards the year. It is seen that for formation of the year as 2001 the figure “19” is scored off and the figure “9” is altered to “2” and the fourth figure is erased and is written as “0” and thereafter the figure “01” also is inserted. CRA 119/08 8 The material alteration so effected is apparent on the face of Exhibit P1 and is further convincingly established on viewing the altered figures using a magnifying glass. The contention of the first respondent, therefore, that the cheque is not one issued in 2001 or in 2000 stands established by the corrections seen effected in Exhibit P1 by the aforesaid material alteration. This aspect also has been discussed by the learned Sessions Judge. 12. During the period when the appellant alleges that he advanced Rs.75,000/- to the first respondent, the balance in his account, as evidenced by Exhibit D2 extract, is only less than Rs.2,000/- and the lump sum deposits in his accounts are of Rs.60,000/- on 9.9.1998, Rs.1,50,000/- on 30.10.1998, Rs.40,000/- 6.11.1998 and Rs.65,000/- on 7.1.2000. Out of the amount of Rs.60,000/- deposited on 9.9.1998, Rs.50,000/- was withdrawn on 18.9.1998 and Rs.55,000/- and odd was withdrawn on 25.10.1998. Out of the amount of Rs.1,50,000/- deposited on 30.10.1998, an amount of CRA 119/08 9 Rs.1,48,722/- was withdrawn on the same day, leaving a balance amount of Rs.1,621/- only in his account. The amount of Rs.40,000/- deposited on 6.11.1998 has been withdrawn under five cheques during the period from 10.11.1998 to 28.11.1998, effecting withdrawals of Rs.25,000/-, Rs.8,000/-, Rs.5,000/-, Rs.2,500/- and Rs.1,000/-, leaving a balance of Rs.121/-. Similarly, the amount of Rs.65,000/- deposited on 7.1.2000 was being withdrawn during the period from 7.1.2000 to 19.2.2000, by effecting withdrawals on various dates of Rs.20,000/-, Rs.5,000/-, Rs.10,000/-, Rs.16,000/-,Rs.10,000/-, Rs.3,000/- and Rs.1,000/-, leaving a balance of Rs.435/- only in his account. The financial position of the appellant, evidenced by Exhibit D2 is not at all sound. There is absolutely no evidence on record, apart from the interested testimony of the appellant as PW1 to show that as on 15.4.2001, he was in possession of funds sufficient enough to advance Rs.75,000/- to the first respondent. To establish that aspect, CRA 119/08 10 the appellant relied on Exhibit P11 agreement entered into between himself and one Jaison Chacko regarding transfer of a jeep. It is dated 7.1.2000. It is for the sale of jeep bearing Reg.No.KRU 2661 for a consideration of Rs.90,000/-, receiving an amount of Rs.75,000/- in advance.It is an agreement on a plain paper signed by the appellant and Jaison Chacko, affixing revenue stamps of value of one rupee each. There is absolutely nothing on record to show that the appellant had become the owner of the jeep bearing Reg.No.KRU 2661 at any point of time, when the recital in Exhibit P11 shows that the said jeep is one which stands in the name of one George of Kadakkallil, Kavakad. The agreement where under the appellant purchased the jeep, if at all, is also not produced. Jaison Chacko, who is Party No.2 to Exhibit P11 or the witnesses to Exhibit P11 are not examined. So, apart from the interested testimony of the appellant as PW1, there is absolutely nothing to establish that the appellant became the owner of the jeep bearing Reg. CRA 119/08 11 No.KRU 2661 under any agreement whatsoever or that he has sold the said vehicle under Exhibit P11 to Jaison Chacko for a consideration of Rs.90,000/-, receiving an advance amount of Rs.75,000/-. 13. Counsel for the appellant submits that the entry dated 7.1.2000 in Exhibit D2 extract of his account would show that Rs.65,000/- is credited to his account on 7.1.2000. However, as already discussed above, the entire amount of Rs.65,000/deposited on 7.1.2000 has been withdrawn vide six withdrawals between the period from 17.1.2000 to 19.2.2000, leaving a balance amount of Rs.435/only and on 15.4.2001, the date on which the appellant submits that he has advanced an amount of Rs.75,000/- to the first respondent, the amount to the credit of the appellant is only Rs.461/-. The contentions as regards other disputes between the parties gain little importance when it is seen that the appellant is not one in affluent circumstances, so as to advance Rs.75,000/- to the first respondent. The appellant is only a driver by CRA 119/08 12 profession and is not at all in an affluent circumstance. 14. According to the first respondent, an amount of Rs.90,000/- was withdrawn from his account at Oravakkal Branch of the Lord Krishna Bank Ltd. on 7.1.2000 and from out of that, an amount of Rs.86,400/- was paid to the appellant on 7.1.2000 in full and final settlement of the loan of Rs.70,000/- availed of by him during October 1998, delivering to the appellant by way of security an undated signed cheque for Rs.75,000/-. The withdrawal of Rs.90,000/- on 7.1.2000 from the said account of the first respondent is evidenced by Exhibit D3 extract and a deposit of Rs.65,000/in the account of the appellant on 7.1.2000 is evidenced by Exhibit D2 extract of the account maintained by him at the Ayarkunnam Service Cooperative Bank. It is to explain the source of the said Rs.65,000/- that the appellant produced Exhibit P11. But, however, as regards Exhibit P11, there is no convincing evidence from the interested CRA 119/08 13 testimony as PW1. 15. It is apposite to mention in this context the decision of the Apex Court in Krishna **Janardhan Bhat v. Dattatraya G.Hegde** (2008 (1) KHC 410), wherein the Apex Court has held that under Section 139 of the Negotiable Instruments Act, there is no presumption regarding existence of any debt or existence of any legally recoverable debt, but that the only presumption available under Section 139 of the Act in favour of the holder of the cheque is that the same has been issued in discharge of any debt or other liability. In the instant case, the appellant has not been able to establish that he has advanced Rs.75,000/- to the first respondent or that Exhibit P1 cheque has been issued in discharge of the said debt. The material alterations seen in Exhibit P1 as also the evidence in the case, by preponderance of probabilities, probabilise the truth in the contentions of the first respondent, as rightly found by the lower CRA 119/08 14 appellate court. The acquittal of the first respondent by the lower appellate court has only to be confirmed in the circumstances and this criminal appeal dismissed. In the result, I dismiss this criminal appeal, confirming the acquittal of the first respondent by the lower appellate court. 31[st] March, 2008 (K.P.Balachandran, Judge) tkv