Raphy C. L S/o C.V. Lonappan v. Reji Thomas and Another and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **CRL.A.No.972 of 2010** **AGAINST THE JUDGMENT IN CC 224/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS-I,THRISSUR DATED 10-12-2009** **AGAINST THE JUDGMENT IN Crl.L.P.421/2010 of HIGHCOURT DATED** ## **19-05-2010** ## **APPELLANT/COMPLAINANT:** **RAPHY.C.L S/O C.V.LONAPPAN,CHIRAMEL HOUSE, RAMAVARMAPURAM P.O., THRISSUR.** **BY ADV. SRI.P.SANTHOSH (PODUVAL)** ## **RESPONDENTS/ACCUSED & STATE:** - **1 REJI THOMAS AND ANOTHER S/O THOMAS,NIRAPPILAVUNGAL HOUSE, VETTILAPPARA, KANNARA P.O., THRISSUR DISTRICT.** - **2 STATE OF KREALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SMT.MAYA.M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON 02.08.2019 PASSED THE FOLLOWING:** Crl.A.No.972/2010 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.972 of 2010 -----------------------------------------Dated this the 2[nd] day of August, 2019 ## **J U D G M E N T** The appellant is the complainant. Challenge in the appeal is directed against the judgment of the trial court acquitting the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant, as per the averments in the complaint, is that the accused had drawn and delivered to him a cheque dated 17.05.2006 for Rs.20,000/- in discharge of a legally enforceable debt. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the Crl.A.No.972/2010 3 notice. He did not pay the amount. 3. During the trial of the case, PW1 was examined and Exts. P1 to P6 were marked on the side of the complainant. The accused got himself examined as DW1. The trial court held that the complainant failed to prove execution of the cheque by the accused and therefore,found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him. 4. Heard learned counsel for the appellant and perused the records. Inspite of service of notice, the first respondent/accused has not appeared. 5. Ext.P1 is the cheque dated 17.05.2006 for Rs.20,000/alleged to have been executed by the accused and delivered by him to the complainant. Ext.P2 memorandum dated 26.05.2006 issued from the bank shows that the cheque was returned unpaid for the reason that there was no sufficient amount in the account of the accused. Ext.P3 memorandum shows that it was on 29.05.2006 that intimation regarding the dishonour of the cheque was given to the complainant from his bank. Ext.P4 is the copy of the lawyer notice sent by the complainant to the Crl.A.No.972/2010 4 accused demanding payment of the amount of the cheque. It is dated 03.06.2006. Ext.P6 postal acknowledgment card shows that the accused received the notice. The date on which he received the notice is not clear from Ext.P6 postal acknowledgment card. The complaint was filed on 22.07.2006. 6. The complainant was examined as PW1. In examinationin-chief (proof affidavit), he has given evidence that when he demanded the accused to repay the amount of Rs.20,000/borrowed from him, the accused wrote and signed the cheque dated 17.05.2006 for that amount and gave it to him. 7. PW1 has stated on cross examination that it was early in March, 2006 that the accused borrowed the amount from him but he could not remember the date of the transaction. He would say that he does not know the details of the accused. He has stated that the accused came to his house with the cheque and signed it and gave it to him. He would say that the amount was then already written in the cheque. 8. The plea of the accused is that he had subscribed to the kuri conducted by the firm 'Crown Kuries' and when he Crl.A.No.972/2010 5 received the kuri amount, he had given a signed blank cheque as security. It is alleged by the accused that the complainant, who is a partner of the firm 'Crown Kuries' has misused the aforesaid cheque and filed the complaint. When examined as DW1, the accused has given evidence to this effect. 9. The trial court has found that the evidence of PW1 regarding the loan transaction and execution and delivery of the cheque by the accused in discharge of the debt in such transaction cannot be believed. The trial court has given valid reasons for disbelieving the evidence of the complainant. 10. In the first place, there is total absence of any averment in the complaint regarding the nature of the debt or liability of the accused which existed towards the complainant. What is stated in the complaint is only that the accused had drawn and delivered the cheque to the complainant in discharge of a legally enforceable debt. There is not even a whisper in the complaint regarding the loan transaction between the complainant and the accused. Even at the time of evidence, the complainant could not state the details of the loan transaction. Crl.A.No.972/2010 6 He could not even tell the date of the transaction. 11. In the second place, the evidence of PW1 is not consistent regarding the execution of the cheque by the accused. He has stated in examination-in-chief that the accused wrote and signed the cheque and gave it to him. However, on cross examination, he would say that the accused had come to his house with the cheque and then the amount was already written in the cheque. 12. In the third place, though PW1 has stated on cross examination that his neighbour Abi had seen the accused drawing and delivering the cheque to him, Abi was not examined. 13. The evidence of the complainant, where it is found to be credible and trustworthy, is sufficient to conclude that the cheque was duly executed by the accused and delivered to him. Corroboration is a rule of prudence and not one of law. Whether corroboration to the evidence of the complainant is required or not would depend upon the circumstances of each case. 14. In the instant case, in the light of the inconsistency in the evidence of PW1 regarding the drawing and delivering of the Crl.A.No.972/2010 7 cheque by the accused, examination of the independent person, who had allegedly seen the accused drawing and delivering the cheque to the complainant, was necessary. But the complainant did not prefer to examine that person as a witness. 13. In the instant case, the accused has raised a plea which is probable and acceptable. He entered the witness box and gave evidence in support of his plea. Admittedly, the complainant is a partner of the firm 'Crown Kuries'. The plea of the accused that, he had given a signed blank cheque when he received the kuri amount from Crown Kuries, is highly probable. 16. The evidence of the accused (DW1) is assailed by the appellant on two grounds. In the first place, it is pointed out that the accused has not produced any documents to prove that he had subscribed to any kuri conducted by 'Crown Kuries' and that he had bid the kuri and received the kuri amount. Nonproduction of the relevant documents with regard to the kuri transaction by the accused is not fatal to his plea. Admittedly, the complainant was a partner of the firm 'Crown Kuries'. PW1 did not deny the fact that the accused was a subscriber to the Crl.A.No.972/2010 8 kuri conducted by the firm. He would say that he only used to attend the meetings in the firm. May be, as a partner of the firm, he was not dealing with the day to day office matters of the firm. But, he has stated that he had got acquaintance with the accused for a period of six years. According to PW1, that is the reason why he gave amount to the accused without obtaining any documents from him. If the accused was a person closely acquainted with him, the complainant would have known whether the accused had subscribed to the kuri conducted by the firm. At any rate, there is no reason to disbelieve the evidence of DW1 that he had subscribed to the kuri conducted by 'Crown Kuries' and that he had given a signed blank cheque at the time of receiving the kuri amount. 17. In the second place, learned counsel for the appellant would contend that the accused did not send any reply to the statutory notice and absence of reply by the accused to the notice indicates that the case of the complainant is true. The accused (DW1) has stated in examination-in-chief that when he received the lawyer notice from the complainant, he went to the Crl.A.No.972/2010 9 firm and enquired about it and then he was told that if he paid the amount due there, there would not be any problem. It is the reason stated by the accused for not sending any reply. This plea raised by the accused is also very much probable. 18. Even otherwise, merely for the reason that the accused did not send any reply to the statutory notice, it cannot be presumed that the case of the complainant is true. Failure to send a reply to the statutory notice cannot tilt the balance in favour of the complainant. Though, failure to send a reply to the statutory notice may be a circumstance in favour of the complainant, the court cannot jump to a conclusion that on account of such failure, the case set up by the complainant is true. The failure to send reply notice has to be appreciated while considering the totality of the evidence and circumstances available in a particular case. There is no rule that a mere failure to send a reply to the statutory notice will give rise to a presumption that the case advanced by the accused during cross examination of the complainant should be totally disbelieved or that his failure to send a reply would tantamount to proof of Crl.A.No.972/2010 10 execution of the cheque (See **Yohannan v. Sabu : 2012 (2) KHC 761** ). 19. It is undoubtedly true that when a cheque is signed and issued by a person and the complainant reasonably discharges the initial burden of proving execution of the cheque by the accused, the burden is upon the accused to rebut the presumption under Section 139 of the Act. But the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted. 20. In **Vijay v. Laxman : (2013) 3 SCC 86** , the Supreme Court has observed as follows: _“The High Court has rightly accepted the version given by the accused - respondent herein. We say so for reasons more than one. In the first place_ Crl.A.No.972/2010 11 _the story of the complainant that he advanced a loan to the respondent - accused is unsupported by any material leave alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects thereby making the entire story suspect. ........Coming then to the present case, the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance”._ The above observations made by the Apex Court squarely apply to the facts of the present case. 21. Even while exercising the appellate power against a judgment of acquittal, the High Court should bear in mind the well-settled principle of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the trial court. An order of acquittal can be interfered with only under compelling grounds or circumstances. Crl.A.No.972/2010 12 In the instant case, I find no reason to upset the verdict of acquittal passed by the court below. In the result, the appeal is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/30/07/2019 True Copy PS to Judge