Salini G.V. v. The State of Kerala and Sreekantan V.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1896 of 2007() -----------------------------CRA.284/2004 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.539/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------------------- SALINI G.V., D/O.VIJAYAMMA, T.C.30/265, NADUTHATTIL VEEDU, NEAR KAVU, ARYANADU P.O., THIRUVANANTHAPURAM DIST. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): RESPONDENTS,STATE & COMPLAINANT. --------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SREEKANTAN V., SREE, T.C.77/875, MOONNAMANAKKAL PETTAH, THIRUVANANTHAPURAM. ADV. SRI.R.GOPAN FOR R2 SRI.K.RAJESH KANNAN FOR R2 BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 2 /12 /2008 , THE COURT ON 02/12/2008 PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** =========================== Crl.R.P. NO.1896 OF 2007 =========================== Dated this the 2[st] day of December,2008 ORDER Revision petitioner was convicted for the offence under section 138 of Negotiable Instruments Act by the Judicial First Class Magistrate V, Thiruvananthapuram in C.C.539/2003. Though petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.A.284/2004, conviction and sentence were confirmed. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner and second respondent, the complainant were heard. 3. Learned counsel appearing for the revision petitioner argued that appreciation of evidence by the courts below were perverse and when evidence of PW1 the complainant establish that he had no money of his own to grant a loan of Rs.3,50,000/- and the CRRP1896/2007 2 loan was allegedly paid to the revision petitioner, as he had received the amount from his grandfather being his share in the property the courts below did not properly bear in mind the evidence that the amount was paid two months earlier to the date of issuance of Ext.P1 cheque and second respondent allegedly received the amount from his grandfather only on the date of issuance of the cheque. It is argued that the presumption, if any available under section 139 of Negotiable Instruments Act, was rebutted. Learned counsel also argued that evidence of PW1 establishes that revision petitioner is not having any employment and her husband is only an autorikshaw driver and in such circumstance, it is highly improbable that a loan of Rs.3,50,000/- would be given to the revision petitioner and that too without getting any instrument evidencing the promise to repay it. It is therefore argued that the conviction is not sustainable. 4. Learned counsel appearing for the second respondent argued that the trial court and the CRRP1896/2007 3 appellate court appreciated the evidence in the proper perspective and there is no reason to interfere with the factual findings. It was argued that though Ext.P3 lawyer notice was received by the revision petitioner, she did not send any reply and it is not the conduct of an ordinary prudent human being and that itself justifies the findings of the courts below. It was argued that the signature in Ext.P1 cheque was not disputed and the contention raised by the revision petitioner was that Ext.P1 cheque was given by her husband to second respondent and though DW1 was examined his evidence is unbelievable and therefore courts below were justified in holding that Ext.P1 cheque was issued by the revision petitioner in discharge of the debt as deposed by PW1. Learned counsel relying on the decision of the Apex Court in **M.M.T.C. Ltd v. Medchl Chemicals & Pharma (P) Ltd (2002) 1 SCC 234) and Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and others (2008) 7 SCC 655)** argued that the presumption provided under CRRP1896/2007 4 section 139 of Negotiable Instruments Act was not rebutted at all and the evidence of PW1 establishes that revision petitioner borrowed Rs.3,50,000/- and towards its repayment Ext.P1 cheque was issued and therefore the conviction is perfectly in order. 5. On going through the judgments of the courts below, it is absolutely clear that courts below did not properly appreciate the evidence. Before considering the evidence the background of the case is to be born in mind. Second respondent, who claims to have granted a loan of Rs.3,50,000/-, is having only no employment except giving tuition to students. Even according to second respondent he had no funds of his own to grant a loan of Rs.3,50,000/- and he granted that loan only because of the money which was given by his grandfather. Revision petitioner is unemployed. Her husband is only an autorikshaw driver. It is admitted by second respondent as PW1 that he does not know whether that autorikshaw belongs to the husband of the revision petitioner. Though second respondent deposed that revision petitioner is having two CRRP1896/2007 5 houses he could not give the particulars. It is such a person who claims that he granted a loan of Rs.3,50,000/- without getting any instrument evidencing the payment to revision petitioner. With this aspects in mind the evidence is to be appreciated. 6. The case in Ext.P3 notice sent under section 138(b) of Negotiable Instruments Act was that revision petitioner borrowed Rs.3,50,000/- and in order to clear that liability issued Ext.P1 cheque, which was dishonoured when presented for encashment. The case in the complaint was also that revision petitioner borrowed Rs.3,50,000/for her urgent personal needs and in order to clear that liability revision petitioner issued the cheque dated 17.12.2002. Neither in Ext.P3 notice nor in the complaint, second respondent disclosed when the amount was borrowed. But a reading of the complaint and the notice reveal that the amount was borrowed earlier and the cheque was issued later. The proof affidavit filed by second respondent, in lieu of the chief examination, also CRRP1896/2007 6 does not show when the amount was borrowed. Instead it only shows that when the amount was demanded back, Ext.P1 cheque was issued. But PW1 was cross examined with regard to his means to pay the loan, PW1 unambiguously deposed that he granted the loan of Rs.3,50,000/- as he had received the amount from his grandfather on 17.12.2002. It was unambiguously deposed by PW1 that but for the amount allegedly given by his grandfather second respondent would not have granted a loan to the revision petitioner as he had no other funds. If that be the case, second respondent could have granted the amount, only after his grandfather paid that amount to him. If PW1 is to be believed, that amount was received by him from his grandfather only on 17.12.2002. If that be the case prior to 17.12.2002, revision petitioner could not have borrowed Rs.3,50,000/- from the second respondent and second respondent could not have granted the loan earlier as he had no such funds. PW1 in further cross examination clearly deposed that the cheque was issued by the revision petitioner two CRRP1896/2007 7 months after the date of borrowal. If that be the case, the amount could have been borrowed only in October, 2002. The evidence of PW1 himself establish that in October, 2002 he had no funds to grant a loan of Rs.3,50,000/- to the revision petitioner. Unfortunately both learned Magistrate and learned Sessions Judge did not appreciate this fact in the proper perspective. In the light of this evidence even if a presumption provided under section 139 of Negotiable Instruments Act could be drawn, evidence of PW1 rebuts that presumption. When the cheque was issued on 17.12.2002 and the cheque was allegedly issued towards repayment of the amount which was borrowed two months earlier to that date, and PW1 unambiguously admitted that he had no funds prior to the receipt of the amount from his grandfather on 17.12.2002, it is absolutely clear that second respondent could not have granted a loan of Rs.3,50,000/- before 17.12.2002. If that be the case, Ext.P1 cheque could not have been issued towards discharge of an existing liability, as the liability would arise CRRP1896/2007 8 only after granting a loan. For granting a loan, second respondent should have money. When the evidence of PW1 establishes that prior to 17.12.2002, he had no money to pay a loan of Rs.3,50,000/- and Ext.P1 cheque was issued on 17.12.2002, it is absolutely clear that the cheque was not issued as claimed by the revision petitioner. 7. Though courts below convicted revision petitioner based on the presumption available under section 139 of Negotiable Instruments Act and disbelieving the defence evidence finding it insufficient to rebut the presumption, presumption under section 139 could be drawn only in a case where execution is admitted or proved. Revision petitioner did not admit the case of second respondent that the cheque was drawn in his favour. Hence it is for second respondent to prove that the cheque was drawn in his favour. Evidence of PW1 does not prove the execution. He has no case that revision petitioner had written or signed the cheque in his presence. Therefore there is no CRRP1896/2007 9 evidence to prove that the cheque was issued by the revision petitioner in favour of second respondent. If so even the presumption under section 139 is not available to the second respondent,second respondent must prove that it was issued in discharge of the debt or liability. When by his own evidence, the case of a loan of Rs.3,50,000/in favour of revision petitioner is proved to be improbable, the conviction is not legal. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act, in such circumstance, is unsustainable. Revision is allowed. Conviction and sentence passed by Judicial First Class Magistrate-V, Thiruvananthapuram in 539/2003 as confirmed by Sessions Judge in Crl.A.284/2004 are set aside. Petitioner is acquitted. Bail bond executed by her stands cancelled. M.SASIDHARAN NAMBIAR JUDGE tpl/- CRRP1896/2007 10 ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006