Rajmohan v. Chandrika Shaji and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944** **CRL.A NO. 584 OF 2019** **AGAINST THE JUDGMENT IN CC 969/2008 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS -II, KOCHI** ## **APPELLANT/COMPLAINANT:** RAJMOHAN,, AGED 56 YEARS S/O. ANATHA PAI, C.C VIII/694C, GCDA COLONY, EAST ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI 682 002. BY ADVS. G.KRISHNAKUMAR M.L.REMYA ## **RESPONDENTS/ACCUSED & STATE:** 1 CHANDRIKA SHAJI, AGED 57 YEARS W/O. M.G SHAJI,SINDHOORAM NIVAS, KELAMANGALAM THUNDIL, ERATTAKULANGARA ROAD, PACHALAM 682 002 2 STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 018 BY ADV Adv.K.V.Sabu ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON 15.03.2023 DELIVERED THE FOLLOWING: Crl.A. 584/2019 2 ## **JUDGMENT** Dated this the 15[th] day of March, 2023 The petitioner is the complainant in C.C. No.969 of 2008 of the Judicial First Class Magistrate Court-II, Kochi. The complaint was filed alleging commission of offence under Section 138 of the Negotiable Instruments Act by the first respondent. As per the averments in the complaint, the first respondent had borrowed an amount of Rs.4,00,000/- from the complainant and towards discharge of that liability, had issued a cheque for Rs.4,00,000/- drawn on the South Indian Bank, Pachalam Branch. The cheque, on presentation, was dishonoured for insufficiency of funds. Although a statutory notice demanding payment of the money due was sent, the accused did not reply to the notice or pay the amount. 2. In order to prove his case, the appellant gave evidence as PW1 and marked Exts.P1 to P6. While questioning under Section 313 Cr.P.C, the accused denied all incriminating circumstances brought out against her, but no defence evidence was adduced. The trial court, on appreciation of Crl.A. 584/2019 3 evidence and consideration of legal contentions, acquitted the accused under Section 255 (1) Cr.P.C. Hence, this appeal. 3. Adv.G.Krishna Kumar appearing for the appellant assailed the impugned judgment by contending that, in spite of the complainant having adduced evidence both oral and documentary, the trial court acquitted the accused based on surmises and conjectures. Even though the accused made an attempt to deny her signature, no steps to get the cheque examined by an expert was taken. As such, the execution of the cheque stood uncontroverted and hence, the presumptions under Sections 118 and 139 of the NI Act got attracted. Even though the presumption can be rebutted based on the patent inconsistencies in the complainant's case and preponderance of probabilities, in the case at hand, the accused had miserably failed to point out any inconsistency or to set forth preponderance of probabilities. It is contended that rather than the complainant, it was the accused who had come forward with the inconsistent versions. At one stage, the accused denied her signature in the cheque. Later, she put forth a defence that the actual transaction was between the Crl.A. 584/2019 4 complainant and the husband of the accused and even later, she came forward with a defence that her signed blank cheque was misused by the complainant. It is contended that once issuance of the cheque and the signature is admitted, the complainant is entitled to get the benefit of presumption under Sections 118 and 139 of the NI Act and such presumption cannot be rebutted by putting forward certain suggestions during cross-examination of the complainant. In support of the contention, reliance is placed on **Sulochana Devi** v. **Baburaj V and Another** (2016(1) KHC 134). Based on the decision in **Gopakumar P** v. **B. Anil Kumar and Another** (2011 (3) KHC 850), it is argued that when the accused has a case that the cheque was issued in a blank form with signature alone, burden is on the accused to prove that aspect. 4. Adv. K.V. Sabu appearing for the 1[st] respondent/ accused contended that being an appeal against acquittal, the scope for interference is very limited and viewed in that manner, the impugned judgment is unassailable. It is contended that the inconsistencies in the complainant's evidence coupled with the suspicious circumstances was Crl.A. 584/2019 5 enough to offset the presumptions under Sections 118 and 139 of the NI Act. Absolutely nothing was stated either in the notice, complaint, or the chief affidavit as to the transaction which had led to the issuance of a cheque for Rs.4,00,000/-. Further, it was improbable for the complainant doing business at Mattancherry to have advanced an amount of Rs.4,00,000/to the accused hailing from Pachalam based on a casual acquaintance with her. The fact that the cheque was typewritten also added to the suspicion. In addition, the case of the complainant is that the cheque was handed over to him at Mattancherry by the accused while her husband was sitting inside their car. The improbability of such a transaction was also taken note of by the trial court. It is the totality of these circumstances which prompted the trial court to find the presumption to have been rebutted. 5. A perusal of the impugned judgment shows that the suspicious circumstances which weighed with the trial court were the complainant's version that the husband of the accused was sitting in the car in front of the shop when the cheque was handed over by the accused. According to the Crl.A. 584/2019 6 trial court, the husband would not have kept aloof when the wife was receiving an amount of Rs.4,00,000/- in cash. In my opinion, the above archaic observation is without substance since there is nothing wrong in a lady entering into a transaction for Rs.4 Lakhs without the husband being present by her side. The assumption of the trial court that the statement of the complainant that he had seen the accused and her husband in their gas agency at Chittur would point towards the fact that the husband of the accused was involved in her business affairs is difficult to digest. Rather than proper appreciation of evidence it reveals a conservative mind set. The third reason is that Ext.P1 is a typewritten cheque. Indisputably, the complainant and accused are doing business and therefore, money transactions between them based on typewritten cheques cannot give rise to any suspicion. The settled legal position that even a blank cheque leaf voluntarily signed and handed over by the accused, would attract presumption under Section 139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. The courts have also Crl.A. 584/2019 7 consistently held that mere filling of cheque by the payee would not invalidate the cheque and it does not amount to alteration. (See **Bir Singh v. Mukesh Kumar** [(2019) 4 SCC 197]. 6. The observation of the trial court that failure of the accused to send reply notice is not to be taken seriously in the circumstances of the case is also not legally sustainable. No doubt, failure to send reply notice, by itself, cannot lead to the conclusion of the allegations in the notice being accepted. At the same time, as held in **Gopakumar P** (supra), failure of the accused to explain the reason for not sending the reply notice would weaken the defence case. 7. The court below having thus placed reliance on factors which are irrelevant for deciding whether the presumption under Section 139 is rebutted or not, the impugned judgment is liable to be set aside. In the result, the Crl. Appeal is allowed. The judgment in C.C. No. 969 of 2008 of the Judicial First Class Magistrate-II, Kochi is set aside and the matter is remanded to the trial court Crl.A. 584/2019 8 for rendering fresh judgment, based on proper appreciation of evidence and application of law. The judgment, as directed above, shall be pronounced within three months of receipt of a copy of this judgment. The parties shall appear before the trial court on **20.04.2023** . The Registry shall send back the lower court records to the trial court immediately. Sd/- **V.G.ARUN JUDGE** sb