Sajeev v. Jayakumar P.K. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 29TH SEPTEMBER, 2008 / 7TH ASWINA, 1930 **CRL.A.No. 865 of 2001** (CC.369/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA) .................... APPELLANT/COMPLAINANT: ---------------------------------SAJEEV, S/O.BHASKARAN, PEEDIKACKALACHIRA HOUSE, AROOR.P.O., CHERTHALA. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENTS/ACCUSED AND STATE: ----------------------------------------------- 1. JAYAKUMAR.P.K., S/O.PADMANABHA PILLA, KANNIKKATU HOUSE, AROOKUTTY.P.O., CHERTHALA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.J.OM PRAKASH FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **--------------------------------------------Crl.A.No. 865 of 2001 - C --------------------------------------------Dated this the 29[th] day of September, 2008** ## **J U D G M E N T** This appeal arises at the instance of the complainant against the judgment dated 28.3.2001 in C.C.No.369 of 1998 of the Judicial First Class Magistrate Court-II, Cherthala by which the court below acquitted the first respondent/accused under Section 255(1) of Cr.P.C. 2. On the allegation that the complainant had advanced a sum of Rs.74,000/- to the accused and towards the said liability, the accused had issued the cheque in question for an amount of Rs.74,000/- and when the complainant presented the same for encashment, it was dishonoured for want of insufficient fund in the account maintained by the accused. Consequently, it is claimed that he had caused to send a notice to the accused, but he did not care to issue any reply and hence, he preferred the complaint for prosecuting the accused under Section 138 of the Negotiable Instruments Act. The court below took cognizance upon the above complaint and instituted C.C.No.369 of 1998 and when the accused appeared, the ## **Crl.A.NO.865 of 2001** ## **:-2-:** particulars were read over to him to which he pleaded not guilty which resulted in further trial during which the complainant himself was examined as PW1 and produced Exts.P1 to P7 as documentary evidence from his side. From the side of the defence, though no documentary evidence was adduced, DW1 was examined. The trial court, based upon the contentions advanced by the parties and materials, framed two issues for its consideration. Finally, the court below found that there is no bona fide in the complaint and the complainant has failed to establish that the accused issued Ext.P1 cheque towards the discharge of legal debt, which is due towards the complainant and thus, the accused is found not guilty and accordingly, he is acquitted under Section 255(1) of Cr.P.C. It is the above order of acquittal which is challenged in this appeal. 3. I have heard Mr.T.H.Abdul Azeez, learned counsel appearing for the appellant and also Mr.J.Om Prakash, learned counsel appearing for the first respondent. ## **Crl.A.NO.865 of 2001** ## **:-3-:** 4. Learned counsel for the appellant submits that the finding arrived on by the court below is wrong and when the accused admitted the issuance of cheque, the presumption under Section 139 of the N.I.Act is in favour of the complainant and he need not further establish the liability due from the accused to the complainant. On the strength of the decision reported in **General Auto Sales** v. **Vijayalakshmi** [2005(1) KLT 478], counsel submits that the bounced cheque given by guarantor comes within the fold of Section 138. So, according to counsel for the appellant, as and when the cheque in question was admittedly issued by the accused, the presumption will be in favour of the holder/complainant and therefore, the finding of the court below is illegal. 5. Per contra, counsel for the respondents submits that the consistent defence taken by the accused is to the effect that he had received only an amount of Rs.10,000/- from the complainant and there is no financial liability more than the amount so admitted ## **Crl.A.NO.865 of 2001** ## **:-4-:** and therefore, no cheque for an amount of Rs.74,000/was issued to the complainant as claimed by him and therefore, in the absence of any legally recoverable debt due to the complainant, no liability under Section 138 can be fixed against the accused, counsel for the first respondent submits. Thus, counsel for the first respondent, supporting the judgment of the court below, submits that no interference of this Court is warranted in view of the facts and circumstances involved in the case. 6. I have carefully considered the contentions advanced by learned counsel and also perused the materials available. As pointed out earlier, the case of the complainant is that on demand from the side of the accused, he had advanced a sum of Rs.74,000/- and towards the discharge of the said debt, the first respondent/accused issued the cheque in question. During his examination as a witness, the complainant gave oral evidence regarding the source of money which he gave to the accused. He had also admitted that ## **Crl.A.NO.865 of 2001** ## **:-5-:** altogether there were four cases and also claimed that certain persons witnessed the transaction. But, during trial, apart from his deposition, no other materials are brought to the notice of the court to substantiate the alleged transaction between the complainant and the accused. 7. The court below had held that the accused had succeeded in discharging his burden to rebut the presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act, 1881. One of the grounds noticed by the court below for the above conclusion is that the complainant failed to mention the actual date of transaction in the complaint. In paragraph 12 of the judgment, the court below shows that the accused had made an attempt to establish the defence story during his 313 statement and it is further stated that the accused has proved his case for rebutting the presumption under Section 139 of the N.I.Act. But, there is no elaborate discussion on this aspect. 8. In **Krishna Janardhan Bhat** v. **Dattatraya** ## **Crl.A.NO.865 of 2001** ## **:-6-:** **Hegde** [2008(1) KLT 425 (SC)], the Apex Court had held that Section 139 of the Act merely raises a presumption with regard to the second aspect of the matter and existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It was further held that it merely raised a presumption in favour of a holder of the cheque and the same had been issued for discharge of any debt or other liability. But, it was observed therein that the courts below proceeded on the basis that Section 139 raises a presumption with regard to the existence of a debt also. 9. In the very same decision, the Apex Court had held that an accused, for discharging burden of proof, placed upon him under a statute need not examine himself and he may discharge his burden on the basis of materials already brought on records. It was also held that where chances of false implication cannot be ruled out, background fact and conduct of parties together with their legal requirements are required to be taken into account. In the particular facts and circumstances **Crl.A.NO.865 of 2001** ## **:-7-:** involved in the case, it can be seen that the accused has also admitted transaction between himself and the complainant, but his dispute is with respect to the limitation of his financial liability. According to him, he had borrowed only Rs.10,000/- whereas according to the complainant, he had borrowed a sum of Rs.74,000/-. Regarding this aspect, there is no concrete evidence. The complainant though had averred in the complaint that he had advanced a sum of Rs.74,000/- to the first respondent/accused, there are no details regarding the transaction and supporting evidence. Though the complainant had stated that the transaction was witnessed by certain other persons, they were not examined. It is also stated by him during the examination that the cheque in question was duly filled by the accused and he had put his signature before the complainant. The above claim is not seen substantiated by sufficient evidences. Though the trial court in the impugned judgment had stated that the accused had rebutted the presumption under Section 139, there is no ## **Crl.A.NO.865 of 2001** ## **:-8-:** discussion on this aspect. Of course, as pointed out in the decision of the Apex Court cited supra, the accused need not himself examine in the box for the discharge of his burden to rebut the presumption, but there must be some material to substantiate his claim. He admits that he had received only Rs.10,000/-, for which also there is no other material. Therefore, mere suggestion, especially in the particular facts and circumstances involved in the case, is not sufficient to make out a probable case. Hence, it cannot be held that the defence has succeeded in probabilising a defence case. So, considering the totality of the facts and circumstances involved in the case, I am of the opinion that the court can come into a fresh decision based upon the materials to be adduced before it, in case the matter is sent back to the same court for consideration. 10. In the light of the above discussion and the facts and circumstances involved in the case and in view of the decision of the Apex Court mentioned above, it will be just and proper to remit the matter for fresh ## **Crl.A.NO.865 of 2001** ## **:-9-:** consideration of the court below, with opportunity to the parties to adduce fresh evidence, if so, they are advised. Thus, for enabling the court to take a fresh decision, the impugned order is set aside and the matter is remitted back for fresh consideration and the parties are at liberty to adduce evidence. The parties are directed to appear before the court below on **31.10.2008** on which date the court is directed to take up the complaint on file and to proceed in accordance with law and dispose of the same, as expeditiously as possible. This Criminal Appeal is disposed of as above. **V.K.Mohanan, Judge** MBS/ ## **Crl.A.NO.865 of 2001** ## **:-10-:** ## **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO.865 OF 2001 -------------------------------------------- J U D G M E N T DATED: 29-9-2008 ## **Crl.A.NO.865 of 2001** **:-11-:**