Ravi s/o Pullekkattill Raman v. Shanmughan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 18TH DAY OF MARCH 2020/28TH PHALGUNA, 1941** ## **CRL.A.No.255 OF 2007** **AGAINST THE JUDGMENT IN ST 1483/1998 DATED 01-10-2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,IRINJALAKUDA** **Crl.L.P. 532/2003 DATED 19-11-2003 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** **RAVI, S/O.PULLEKKATTIL RAMAN, KURUMBILAVU VILLAGE, PEZUVIL DESOM, THRISSUR DISTRICT.** **BY ADV.SRI.V.M.KRISHNAKUMAR** ## **RESPONDENT/ACCUSED & STATE:** **1 SHANMUGHAN, S/O.PARAKKAL AYYAPPAN, PAZUVIL DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PRESENTLY RESIDING AT C/O.KAIPULLY VASU, CHERPU.P.O., THRISSUR DISTRICT. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.T.N.MANOJ R1 BY ADV. SMT.K.SUNITHA VINOD R2 BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.255 of 2007 ..2.. ## **JUDGMENT** The appellant is the complainant in S.T.No.1483/1998 before the Judicial First Class Magistrate Court, Irinjalakuda for the offence punishable under Section 138 of the Negotiable Instruments Act. By judgment dated 1.10.2002, the learned Magistrate found the accused not guilty of the offence punishable under Section 138 of the N.I. Act and accordingly the accused was acquitted under Section 255(1) of Cr.P.C. Challenging the acquittal, the complainant has preferred this appeal. 2. The case of the complainant in brief is that the accused, one of the close friends of the complainant, borrowed an amount of Rs.3,50,000/- from him after having executed Ext.P1 cheque in favour of the complainant. When the complainant presented Ext.P1 for collection through Kodakara Farmers Service Co-operative Bank Ltd.No.R.76, it was returned with an endorsement ''funds insufficient'' as per Ext.P2. Hence, the complainant Crl.A.No.255 of 2007 ..3.. issued Ext.P3 notice dated 14.2.1998 calling upon the accused to pay the amount covered under Ext.P1 within the statutory time provided under law. The accused refused to receive Ext.P4 notice by Ext.P3-postal envelope. 3. During the trial, PW1 was examined and marked Exts.P1 to P6 on the side of the complainant. On closing the evidence of the complainant, the accused was questioned under Section 313 of Cr.P.C. The accused denied his liability to pay the amount covered under Ext.P1. In support of his contention, DWs.1 and 2 were examined. On analysing the entire evidence in detail, the trial court has entered a finding that the complainant failed to prove the execution of Ext.P1 and as such the presumptions under Sections 118 and 139 of the N.I.Act are not attracted. Accordingly, the accused was acquitted. Crl.A.No.255 of 2007 ..4.. 4. In the case at hand, PW1 was examined before the trial court. PW1 clearly stated that Ext.P1 cheque was executed for a legally enforceable debt and was handed over to him. In order to determine the question whether the offence punishable under Section 138 of the N.I.Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the N.I.Act and the presumptions as envisaged under Sections 118 and 139 of the N.I.Act. The signature in Ext.P1 cheque was not denied by the accused. In **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]** the Apex Court held that, in view of Section 139 read with Section 118 of the N.I.Act thereof, the court has to presume that the cheque has been issued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- “ _39. It is not the case of the respondent-accused that he either signed the cheque or parted with it_ Crl.A.No.255 of 2007 ..5.. _under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative._ _40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”_ 5. Before the trial court, the accused was examined as DW1. One of the witnesses was examined as DW2. Both of them denied the receipt of Ext.P1 amount and execution of Ext.P1. However, the signature in Ext.P1 was not denied by the accused. In the light of the circumstances and the law applicable on the point, mere Crl.A.No.255 of 2007 **==> picture [22 x 8] intentionally omitted <==** denial of the accused is not sufficient to rebut the presumptions contemplated under Sections 118 and 139 of the N.I.Act. 6. One of the contentions taken by the accused is that there was no notice as provided under Section 138(b) of the N.I.Act. Ext.P3 postal envelope of Ext.P4 notice would indicate that the statutory notice was returned as unclaimed by the accused. It was not disputed that the address of the accused shown in Ext.P4 was not the correct address. The service of Postman is an official act. All official acts are presumed to be done regularly. The accused had not adduced any evidence to rebut the presumption contemplated under Section 114 of the Evidence Act. Hence, this contention is also not sustainable. 7. In view of the above, the trial court patently erred in holding that the burden was on the complainant Crl.A.No.255 of 2007 **==> picture [22 x 8] intentionally omitted <==** to prove that he had advanced the amount to the accused and Ext.P1 cheque was given to him in repayment of the same. The finding of the trial court is perverse. On going through the impugned judgment, this Court is of the view that the trial court misconstrued the provisions under Sections 118 and 139 of the N.I.Act and entered a finding of not guilty for the offence punishable under Section 138 of the N.I.Act. 8. During the pendency of the appeal, the accused filed a memo before this Court stating that he is ready and willing to pay an amount of Rs.1,00,000/- to the complainant in full and final settlement of the entire claim covered under Ext.P1. The memo is recorded. The learned counsel for the appellant, on instructions, submits that the appellant is willing to forego the balance amount and the relief may be moulded for an amount of Rs.1,00,000/- as suggested by the accused. Crl.A.No.255 of 2007 ..8.. 9. In the result, the appeal is allowed. The judgment and order of acquittal dated 1.10.2002 of the Judicial First Class Magistrate Court, Irinjalakuda in S.T.No.1483/1998 stand set aside. In view of the memo filed during the pendency of the appeal, the accused is convicted and sentenced to pay a fine of Rs.1,00,000/- and in default to pay the fine amount, the accused shall undergo simple imprisonment for a period of four months. The fine amount shall be deposited in the trial court within four months from this date, failing which the trial court shall execute the sentence in accordance with law. If the amount is deposited as stated above, the same shall be released to the complainant as compensation under Section 357(1) of Cr.P.C. Sd/- **N.ANIL KUMAR, JUDGE** skj