Ramesh Kumar T.S. v. Prasad P.T. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938** **CRL.A.No. 684 of 2009 (A) --------------------------** ## **ORDER DATED 15-10-2008 IN CRL.A 230/2007 OF DISTRICT COURT, THODUPUZHA** **.....** **PETITIONER/RESPONDENT/COMPLAINANT: ----------------------------------** **RAMESH KUMAR T.S., THACHUPARAMBIL HOUSE, THODUPUZHA.** **BY ADVS.SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H.** **RESPONDENT(S)/APPELLANT/ACCUSED: --------------------------------** **1. PRASAD P.T.,S/O.THANKAPPAN,** **PARANAL HOUSE, VENDU-VAZHI, KOTHAMANGALAM.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.T.J.MICHAEL SRI.SHAJI KURIAN R2 BY PUBLIC PROSECUTOR SMT.P.MAYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **B.KEMAL PASHA, J.** ================ Crl.A. No.684 of 2009 ======================= Dated this the 10[th] day of August, 2016 ## **JUDGMENT** Challenging the judgment of acquittal passed by the Sessions Court, Thodupuzha in Crl.Appeal No.230/2007, the complainant before the trial court in S.T.No.92/2006, has come up in appeal. The case before the trial court was the result of a private complaint filed by the appellant herein as complainant, against the 1[st] respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act'). The learned Magistrate recorded the evidence and found the accused guilty of the offence punishable under Section 138 of the N.I.Act and convicted him thereunder and sentenced him. Aggrieved by the conviction and sentence, the accused preferred Crl.Appeal No.230/2007 before the Sessions Court, Thodupuzha. The learned Sessions Judge, after Crl.A. No.684 of 2009 2 hearing the parties, has chosen to set aside the conviction and sentence and acquitted the accused through the impugned judgment. 2. Heard the learned counsel for the appellant and the learned counsel for the 1[st] respondent. 3. The learned counsel for the appellant has argued that the lower appellate court has considered a minor contradiction and by highlighting it, acquitted the accused without any proper ground. Per contra, the learned counsel for the 1[st] respondent has pointed out that the said contradiction is very material and that the complainant had failed to present prima facie materials in the case to invite the presumptions under Sections 118(a) and 139 of the N.I.Act. It has also been argued that there cannot be a presumption with regard to the debt, that is, original transaction; whereas a presumption can only be there with regard to the consideration of the cheque, provided prima facie materials are placed in evidence to invite the Crl.A. No.684 of 2009 3 presumptions. According to the learned counsel for the 1[st] respondent, there is absolutely nothing to interfere with the judgment passed by the lower appellate court. 4. The specific case of the complainant in his complaint as well as his affidavit in lieu of chief examination of PW1 was that the accused had borrowed an amount of 75,000/-₹ from him on 09.01.2006, by agreeing to repay the same within 20 days. The complainant demanded the amount on 29.01.2006 and on that date, the accused issued Ext.P1 cheque dated 30.01.2006. The said cheque, when presented, returned dishonoured for insufficiency of funds in the accounts of the accused. Other legal formalities were complied with. According to the learned counsel for the appellant, the accused had not issued a reply notice as against the notice issued under Section 138(b) of the N.I.Act. 5. This is not a question of civil liability. When a question of civil liability based on preponderance of Crl.A. No.684 of 2009 4 probability is there, the absence of a reply notice may speak against the accused, whose cheque was dishonoured. At the same time, when the present complaint is one for inviting criminal liability, the entire burden is on the complainant/prosecution to prove the guilt of the accused beyond doubt. Of course, a complainant in an offence under Section 138 of the N.I.Act, is entitled to the presumptions under Sections 118(a) and 139 of the N.I.Act, provided sufficient prima facie materials are brought out. 6. The learned counsel for the 1[st] respondent has invited the attention of this Court to the decision of the Apex Court in **Krishna Janardhan Bhat v. Dattatraya Hegde** [2008 (1) KLT 425 (SC)], wherein it was held that “the existence of legally recoverable debt is not a matter of presumption under Section 139 of the N.I.Act” and the same does not raise a presumption in regard to the existence of a debt also. The existence of a debt has to be proved by the complainant. Of course, the complainant can Crl.A. No.684 of 2009 5 take the aid of the aforesaid presumptions for proving it. At the same time, in order to invite those presumptions, the complainant has to place prima facie materials to the satisfaction of the trial court. 7. As noted above, the specific case of the complainant is that he had lend an amount of 75,000/- to the accused on₹ 09.01.2006 and the accused had agreed to repay the same within 20 days. It is the further case of the complainant that on 29.01.2006, when the complainant demanded the amount, the accused issued Ext.P1 cheque dated 30.01.2006, on 29.01.2006. In cross-examination, the complainant as PW1 has given a go-by to his aforesaid case. In cross examination, he deposed that Ext.P1 cheque was issued on the date and time, at which, the amount was borrowed by the accused. As rightly pointed out by the learned counsel for the 1[st] respondent, this is a material contradiction with regard to the case set up by the complainant. This is a case wherein the complainant had Crl.A. No.684 of 2009 6 alleged that he had lend an amount of 75,000/- to the₹ accused without obtaining any security or documents. In such a case, the aforesaid contradiction assumes importance. 8. In his statement under Section 313 Cr.P.C., the accused has contended that he had borrowed an amount of ₹10,000/- from the complainant on 15.02.2005 on an exorbitant interest. At that time, the complainant had obtained a blank signed cheque leaf from him as security. Even though the amount and interest were discharged, the said cheque leaf was not returned. Thereafter, the accused had occasion to do the timber works at the house of the complainant. According to the accused, an amount of 25,000/- became due from the complainant in₹ that respect. When he demanded the said amount on 16.06.2005, there occurred a wordy altercation and consequent quarrel between him and the complainant. According to the accused, it was by misusing the earlier Crl.A. No.684 of 2009 7 cheque leaf, the complainant has filed the present complaint. 9. In order to prove the contentions of the accused, the accused has examined DW1. The accused had clearly contended that DW1 was present along with him for the timber works at the house of the complainant and he had witnessed the transaction between him and the complainant. DW1 has clearly deposed that he along with the accused had worked at the house of the complainant and he knew that the accused had borrowed an amount of ₹10,000/- from the complainant, for which, a blank signed cheque leaf was obtained by the complainant from the accused. He identified Ext.P1 as the said cheque leaf. According to DW1, there occurred a quarrel between the accused and the complainant regarding the amount to be paid by the complainant to the accused for the timber works carried out at the house of the complainant. Any of those aspects have not been challenged in the cross examination 8 Crl.A. No.684 of 2009 of DW1. Therefore, the evidence of DW1, in fact, stands unchallenged. Apart from a mere suggestion that the accused being the friend of DW1, he was speaking falsehood, the other evidence adduced by DW1 in cross examination, were not challenged. 10. From all the above, this Court is of the view that the impugned judgment passed by the 1[st] appellate court does not call for any interference at all. This appeal is devoid of merits and is only to be dismissed and I do so. In the result, this Crl.Appeal is dismissed. Sd/- **B.KEMAL PASHA, JUDGE** stu //TRUE COPY// P.A TO JUDGE. Crl.A. No.684 of 2009 9