Sajeevan v. M.M. Aboobacker and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 ## CRL.A.No. 1210 of 2001 -------------------------------------- ST.5487/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... ## APPELLANT/COMPLAINANT: ## SRI.M.R.SAJEEVAN, S/O RAJAN, MUKKULATH HOUSE, VELLANGALLOOR, THRISSUR DISTRICT. ## BY ADV. SRI.M.C.GOPI ## RESPONDENTS/ACCUSED: ## 1. SRI.M.M.ABOOBACKER, S/O MOHAMMED, MADAYATHINGAL HOUSE, ERIYAD, THRISSUR DISTRICT. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.V.M.KRISHNAKUMAR BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K.P. Balachandran, J. -------------------------- Crl.A.No. 1210 of 2001 -------------------------- ## **JUDGMENT** This is appeal filed with leave by the complainant in S.T.No.5487/98 on the file of the Judicial First Class Magistrate's Court, Irinjalakuda assailing the acquittal of the first respondent under Section 255(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. Appellant filed the complaint in the court below alleging that Exhibit P1 cheque was issued to him by the first respondent on 20.4.1998 for an amount of Rs.80,000/- at his residence in Vellangallur in discharge of the debt due to him; that he presented the cheque for collection through his bankers - The Federal Bank Ltd., Irinjalakuda branch, but the cheque was returned dishonoured by the drawee bank assigning the reason “funds insufficient” on 29.4.1998 under Exhibit P2 memorandum; that Exhibit P1 cheque along with CRA 1210/01 2 Exhibit P2 memorandum was forwarded to him by his bankers under Exhibit P3 memo; that thereupon, the original of Exhibit P4 notice was issued to the first respondent through Lawyer, under Exhibit P5 postal registration receipt, intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque and that was received by the first respondent under Exhibit P6 postal acknowledgment card on 20.5.1998, to which, he has issued a reply setting up false contentions and he has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate recorded the sworn statement of the complainant and registered the complaint on the file of his court as S.T.No. 5487/98, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. CRA 1210/01 3 4. On appearance of the first respondent in the court below, pursuant to issuance of summons, he was served with copies of all relevant records in the case and he was questioned by the learned Magistrate, reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted by the court below. On the side of the appellant he tendered evidence as PW1 and got examined PW2 as well and got marked in evidence Exhibits P1 to P7. On the appellant closing his evidence, the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, there is no financial transaction at all for him with the appellant; that for the business of his son, an amount of Rs.20,000/- was taken as loan from Viswas Finance and the cheque in question is one given as security for the said transaction and that all amounts were CRA 1210/01 4 repaid to Viswas Finance through the complainant, who was the collection agent of Viswas Finance. On the defence side, DWs 1 and 2 were examined and Exhibit D1 was got marked. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found that the appellant has not established a case for conviction of the first respondent for offence under section 138 of the Negotiable Instruments Act and consequently, acquitted the first respondent under Section 255(1) Cr.P.C. Hence this appeal by the aggrieved appellant. 6. It is contended before me by the learned counsel for the appellant that there is no convincing evidence to establish the defence contention when Exhibit P1 cheque is seen to be issued by the first respondent drawn on his account at the Irinjalakuda Branch of Central Bank of India; that either existence of any financial transaction with Viswas Finance or the allegation that the appellant was an employee and a collection CRA 1210/01 5 agent of Viswas Finance is not established and that in the circumstances, Exhibit P1 cheque having been dishonoured for want of sufficient funds in the account of the first respondent to honour the said cheque and all statutory formalities, which are the pre-requisites for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act, stand complied with also in the instant case, the first respondent should have been found guilty and convicted of offence under Section 138 of the Negotiable Instruments Act. 7. Appellant, as PW1, has deposed that the first respondent borrowed from him an amount of Rs.80,000/- on 10.2.1998 on condition that it will be repaid after two months; that on expiry of the said two months, he issued Exhibit P1 cheque and on presentation, the said cheque was dishonoured for reason of insufficiency of funds in the account of the first respondent to honour the same. PW1 has stated in cross-examination that Exhibit P1 cheque was being brought over by the first respondent duly CRA 1210/01 6 typed out. He does not say, however, as to whether the signature was affixed in his presence or not. In cross-examination, he has also stated that he is not aware as to on which date the demand for money was being made to him by the first respondent and however, that no one has witnessed advancing of loan to the first respondent. As regards the source for Rs.80,000/- for being advanced to the first respondent, PW1 has stated that he was having in his possession Rs.50,000/- and he was borrowing a further amount of Rs.30,000/- from his brother-inlaw and delivering it to the first respondent. In cross-examination, contrary to his statement in chief examination, PW1 has stated that exhibit P1 cheque was being brought by the first respondent on the date of advancing of the loan and it was delivered over to him on the same day on which he advanced the amount to the first respondent. If at all the transaction alleged is true, one cannot go wrong in stating as to when the cheque was given, especially when a large amount of Rs.80,000/- was CRA 1210/01 7 being advanced to the first respondent. The specific case in chief examination is that the amount was advanced on 10.2.1998 on the understanding that it will be repaid after two months and that it was on 20.4.1998 that Exhibit P1 cheque was given to him. This casts serious doubt on the genuineness of the case of the appellant. Regarding the handwriting and signatures in Exhibit D1, put to PW1 in cross-examination, he has, however, denied it and according to him, he was never the collection agent of Viswas Finance. All the same, he has admitted that he has gone to Viswas Finance for pledging. According to PW1, his source of income is from his business in running a shop and that comes to Rs.300/- per day. All the same, he has stated that he has no accounts to show any such income. He has further admitted that he is not paying any tax; that he has no licence for the shop; that the shop is not in his name and that he has no other source of income. Though he has stated that he has got bank account, he states that he is CRA 1210/01 8 not in the habit of effecting financial transactions through bank. It is difficult to believe that the appellant was retaining Rs.50,000/- with him for purchase of any property and if at all it was being kept for purchase of any property, it is not likely that he would advance that amount to the first respondent. His acquaintance with the first respondent, according to him, is for three years prior to the date of his examination in court on 17.1.2000 and the acquaintance, according to him, is by his going over to the shop of the first respondent for purchasing fruits. To the specific question put in cross-examination as to whether the first respondent is not a staff in the Taluk Office, the answer of PW1 is that it had not been told to him. It is true that the first respondent has not been able to establish his case that Exhibit P1 cheque was being entrusted with Viswas Finance by way of security when his son availed of a loan of Rs.20,000/- from Viswas Finance, though to CRA 1210/01 9 establish that aspect he had examined DWs 1 and 2 on his side, their evidence is not sufficient to establish the defence case. But, all the same, the failure on the part of the first respondent to prove his defence cannot be a ground for the appellant to have his case upheld. 8. It is vehemently contended before me by the learned counsel for the appellant that when formal proof is furnished regarding Exhibit P1, Section 139 of the Negotiable Instruments Act enables presumption being drawn in favour of holder of the cheque that the cheque had been issued in discharge of debt and therefore, it has to be held that the case of the appellant stands proved. The contention is not tenable in view of the decision of the Apex Court in **Krishna Janardhan Bhat v. Dattatraya G.Hegde** (2008 (1) KHC 410), wherein, it has been held that presumption under Section 139 of Negotiable Instruments Act is not regarding existence of a debt or existence of any legally enforceable debt, but, that the presumption in CRA 1210/01 10 favour of the holder of the cheque is only that the same has been issued in discharge of any debt or other liability. In the instant case, due execution of Exhibit P1 does not stand established on the testimony of PW1 and the appellant has also miserably failed to establish that he had the requisite financial ability to advance an amount of Rs.80,000/- by way of loan to the first respondent. Hence, in the absence of evidence regarding advancing of the amount of Rs.80,000/- and lack of evidence as to whether the cheque was issued on the date of advancing of loan (10.2.1998) or after two months therefrom, viz., on 20.4.1998, in view of the two inconsistent versions of PW1, the case of the appellant that Exhibit P1 cheque was being executed and delivered by the first respondent in discharge of the said debt, cannot be upheld as true for the mere reason that Exhibit P1 cheque was dishonoured for want of sufficient funds in the account of the first respondent and all statutory formalities required for the maintainability of a CRA 1210/01 11 complaint under Section 138 of the Negotiable Instruments Act are complied with. In the circumstances, this Court cannot, but, concur with the findings of the court below, that it does not stand established that an offence under Section 138 of the Negotiable Instruments stands made out against the first respondent, so as to convict him for offence thereunder. In the result, concurring with the acquittal of the first respondent of offence under Section 138 of the Negotiable Instruments Act by the court below, I dismiss this criminal appeal. 14[th] March, 2008 (K.P.Balachandran, Judge) tkv CRA 1210/01 12 K.P.Balachandran, J. --------------------Crl.A.No.1210 of 2001 --------------------- ## **JUDGMENT** 14[th] March, 2008