Satheesh Kumar v. K. Sasidharan Nair and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 12TH DAY OF JANUARY 2012/22ND POUSHA 1933** **CRRP.No. 1389 of 2009 ( )** **------------------------CRA.133/2008 of D.C & SESSIONS COURT,TRIVANDRUM ST.25/2006 of J.M.F.C.-VI, TRIVANDRUM** ## **REVISION PETITIONER(S)/APPELLANT:** **--------------------------------** **SATHEESH KUMAR, SOFIA NIVAS, SREE NARAYANA NAGAR, PETTAH.P.O, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.MOHAMMED AL RAFI** ## **COMPLAINANT(S)/RESPONDENTS:** ## **---------------------------** **1. K. SASIDHARAN NAIR,** - **S/O. KUNJU KRISHNA PILLAI, BN 43 KARTHIKA ARCHANA NAGAR, PONGAMOODU, MEDICAL COLLEGE THIRUVANANTHAPURAM.** **2. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY SRI.M.RAMASWAMY PILLAI** **SRI.P.M.JOSEPH** - **R2 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **BKA** ## **P. BHAVADASAN, J.** **-----------------------------------------Crl.R.P. NO. 1389 OF 2009 -----------------------------------------Dated this the 12[th] day of January, 2012** ## **O R D E R** The accused in this case is prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. He was accordingly convicted and sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs.80,000/- (Rupees eighty thousand only) and in default of payment of which to undergo simple imprisonment for a further period of one month. In appeal, the appellate court modified the sentence to undergo imprisonment till the rising of the Court and to pay a compensation of Rs.80,000/- (Rupees eighty thousand only) and in default of payment of which to undergo simple imprisonment for a further period of three months. 2. Complainant's case is that having borrowed a sum of Rs.80,000/-, in order to discharge the debt due to him, Crl.R.P. NO. 1389 OF 2009 **==> picture [20 x 8] intentionally omitted <==** the accused had issued Ext.P1 cheque dated 13.07.2006. The cheque on presentation bounced for want of funds. A statutory notice issued to the accused invoked no reply. Since the amount remained unpaid, complaint was laid. 3. After following the necessary procedure, summons was issued. The accused entered appearance. Particulars of the offence were read out to him. He pleaded not guilty. The complainant, therefore, examined himself as PW1 and Exts.P1 to P7 were marked. After close of complainant's evidence, the accused was questioned under Section 313 of CRPC. He denied any transaction with the complainant and pointed out that the complainant is a total stranger to him. His case was that he had issued Ext.P1 blank cheque to one Sri.Radhakrishnan and had no transaction with the complainant. Further case was that the complainant managed to obtain the cheque and made a false claim. In support of his case, he is examined himself as DW1. Crl.R.P. NO. 1389 OF 2009 ..3.. 4. The trial court as well as the appellate court came to the conclusion that the defence set up by the accused cannot be countenanced and the complainant had proved that Ext.P1 cheque was issued to discharge the debt due to the complainant from the accused. Hence the conviction and sentence as already mentioned followed. 5. In this revision petition, the learned counsel for the petitioner pointed out that both the Courts below have omitted to notice certain vital aspects and evidence adduced by the accused, which clearly show that the story put forward by the complainant cannot be true. The learned counsel for the petitioner also pointed out that even assuming that he admitted the signature on the cheque, his case was that a blank cheque was issued to Sri.Radhakrishnan. If that be so, the complainant had to prove that the cheque was executed by him. Until then, Crl.R.P. NO. 1389 OF 2009 **==> picture [20 x 8] intentionally omitted <==** presumption under Section 139 and 118 of Negotiable Instruments Act are not available with the complainant. In support of these contentions, he relied on the decisions in **Shaju, N.I. v. T.K. Paulose (2009 (4) ILR Kerala 48)** and **Joseph v. Gladis Sasi (2010 (3) KLT 379)** . The learned counsel for the petitioner also draws the attention of this Court that the evidence of PW1 wherein he stated that he gained acquaintance with the accused through one Sreekumar. The summons taken out to that person was returned with the endorsement that there was no person working in that institution by the said name. This, according to the learned counsel for the petitioner, is sufficient to show the falsity of the case put forward by the complainant and both the Courts below have not adverted to this aspect. These vital aspects coupled with the fact that the Courts below have omitted to notice that Sections 139 and 118 are not available, has resulted in an erroneous order being passed. In short, the learned counsel points out that there is Crl.R.P. NO. 1389 OF 2009 **==> picture [20 x 8] intentionally omitted <==** no evidence to show that the accused had borrowed any amount for which the cheque was issued. 6. The learned counsel for the respondents, on the other hand, pointed out that it is unbelievable that a person who is occupying a responsible post in KSEB will issue a blank cheque. Convincing reasons have been given by the Courts below as to why the case put forward by the accused could not be accepted. Even after coming to know that the cheque has been misused by the complainant, there was no attempt from the side of the accused to proceed against the complainant and that would show the culpability of the accused. According to the learned counsel, findings entered into by the Courts below are based on the evidence in the case and are findings of facts. This Court may not be justified in interfering with the findings of facts unless it is shown that the findings are either perverse or unwarranted by the evidence on record. Crl.R.P. NO. 1389 OF 2009 ..6.. 7. Regarding the scope of revision petition, the contentions taken by the learned counsel for the respondents appear to be correct. If, as a matter of fact, on appreciating the evidence adduced in the case, the views taken by the Courts below are possible ones, then even assuming that a different view is possible, this Court will not be justified in interfering while exercising the revisional jurisdiction. Unless it is shown that the findings suffer from illegality, impropriety, irregularity or is perverse or unwarranted by the evidence, this Court will not be justified in upsetting the findings of the Courts below. 8. Both the Courts below had taken the view that the complainant is entitled to have the benefit of the presumption available under Section 139 and 118 of the NI Act. It is useful at this point to refer to the decisions cited by the counsel for the revision petitioner. In the decision Crl.R.P. NO. 1389 OF 2009 ..7.. ## reported in **Shaju, N.I. v. T.K. Paulose (2009 (4) ILR** ## **Kerala 48)** , it was read as follows. “The accused has disputed of having any loan transaction with the complainant setting forth a defense version that one of the two signed blank cheques collected by a finance company had been misused by that company for prosecuting him in the case and the complainant is only a name lender on behalf of that company. That defense was projected by the accused in the reply notice (Ext.D1) sent in response to the statutory notice issued by the complainant. In the complaint, the receipt of the reply notice raising such a defense is not mentioned. That omission by itself without anything more may not be material. When the complainant was examined as PW1 in his examination in chief, there is no whisper as to having received any reply notice from the accused. In cross-examination, initially the complainant would claim that he was a timber merchant having agricultural activities also. But, in the next breath he would state that he is a worker in a timber depot with daily wages of Rs.400. His monthly earnings, according to him, is roughly Rs.5,000. He pleaded ignorance whether the advocate through whom he sent notice to the accused on dishonour of the cheque had received any reply. When confronted with the reply notice (Ext.D-1), he pleaded of having no knowledge of that notice. He advanced a sum of Rs.1,40,000 to the accused without obtaining any security and the funds for such advance were from the sale of timber and, at the relevant time, his passbook would show a bank balance of Rs.2 lakhs, according to the complainant. Advertence to the evidence of the complainant has been found imperative since after going through the judgments of the two inferior courts and also perusing the records, I find there was total misappreciation of evidence and also the facts and circumstances by both the courts and it has led to wrong conclusion unsustainable under facts and law causing grave injustice.” Crl.R.P. NO. 1389 OF 2009 ..8.. ## In the decision reported in **Joseph v. Gladis Sasi** ## **(2010 (3) KLT 379)** it was held as follows. “The presumption under S.118 and S.139 of the Negotiable Instruments Act can be drawn only when the execution of the cheque is admitted or proved. The admission of signature in a blank cheque is not admission of execution of the cheque. The respondent only admitted that she had issued Ext.P1 cheque for Rs.1,50,000/- as can be seen in Ext.P1. Her only case is that as the appellant demanded a cheque as security, she had given a signed blank cheque. That admission will never amount to an admission of execution of the cheque. To draw the presumption under Ss.118 and 139 of the Negotiable Instruments Act, appellant has to establish that respondent had drawn the cheque and issued to him. The evidence of PW1 is insufficient to prove the execution. He only deposed that the cheque was given to him. He has no a case that the cheque was written or signed in his presence. A perusal of Ext.P1 cheque shows that respondent had put her thumb impression in the cheque and the body of the cheque is written in English. When it was suggested to PW1 that the respondent does not know English and is illiterate, the appellant did not deny the case and he said that he does not know. He added that it could be that the cheque was written and brought before him. If it was executed before him, appellant would definitely know whether the cheque was written and brought before him or written and signed in his presence. If the thumb impression was affixed on the cheque in his presence, PW1 would definitely depose that the respondent affixed her thumb impression in Ext.P1 cheque in his presence. From the evidence of PW1, it is clear that he is not Crl.R.P. NO. 1389 OF 2009 **==> picture [20 x 8] intentionally omitted <==** aware of these facts. This probabilise the case of the respondent that Ext.P1 cheque was issued as a signed blank cheque and not as a cheque for Rs.1,50,000/-” 9. A reading of the decision would show that merely because a blank cheque is issued, it does not follow that there is due execution of the cheque attracting presumption under Section 139 and 118 of NI Act. Blank cheque may be issued under several circumstances. Once the execution of the cheque is disputed, prima facie burden is on the complainant to establish the due execution of the cheque. 10. The question is, if the Courts below have erred in any manner in applying the principle stated in the above decisions to the facts of the case. PW1, the complainant had given evidence that on 24.10.2002, the accused had borrowed Rs.1,00,000/- from him. When the money was demanded, Ext.P1 chque was issued. PW1 had stated that his acquaintance with the accused was through one Sreekumar. Crl.R.P. NO. 1389 OF 2009 ..10.. 11. The accused sought to have the said Sreekumar examined. He had taken out summons to Sreekumar mentioned by PW1. It is true that the presence of the said person could not be procured. Both the Courts below have considered that the endorsement on the summons that there was no such person in that institution, does not mean that there is no Sreekumar employed with National Book House, Thiruvananthapuram. It only meant that he was not available in that Branch. There is nothing to show that the National Book House had no employee by name Sreekumar. Probably and possibly Sreekumar was not available in the branch where the summons was taken out. But the view taken by the Courts below that merely because of the endorsement on summons, one cannot jump to the conclusion that there is no such person as Sreekumar, seems to be a possible view. 12. DW1 says about the acquaintance with Crl.R.P. NO. 1389 OF 2009 **==> picture [26 x 8] intentionally omitted <==** Sri.Radhakrishnan, who is no more. He also admitted that he had instituted a suit against the wife of Sri.Radhakrishnan. He also has a litigation with brother-inlaw of Sri.Radhakrishnan. The stand of accused is that the cheque in question was given to Sri.Radhakrishnan. In Ext.P7 reply notice, he does not know how the cheque happened to come in the hands of PW1. He does say that he had given the cheque to Radhakrishnan for availing a loan from a Private Bank. However, Radhakrishnan did not avail of the loan, but he entrusted it to an agent through whom he tried to get a loan. He is unable to give any explanation for the possession of the cheque by PW1. He was unable to show that PW1 had any connection with Radhakrishnan. 13. It is pertinent to note that DW1 says that he had enquired with Radhakrishnan if the latter had procured the loan. Radhakrishnan told him that he had not availed of loan and also told him about the entrustment of the cheque to an Crl.R.P. NO. 1389 OF 2009 **==> picture [26 x 8] intentionally omitted <==** agent. Even after knowing that it is surprising to note that DW1 has no case that he made any attempt to get back the blank cheque issued to Sri.Radhakrishnan. At least he could have issued a stop memo to the Bank. It is difficult to believe that a Sub Engineer employed with KSEB is unaware of the potential danger posed by a blank cheque signed by him in the possession of a stranger. It does not stand to reason that DW1 was totally unconcerned about the cheque even when he came to know that it had changed hands. However, he has no case that Radhakrishnan or the agent handed over the cheque to the complainant. He has also no case that Radhakrishnan had borrowed amounts from the complainant and handed over the cheque as security. 14. The accused has no case that the particulars in the cheque were filled up by the complainant. The financial capacity of PW1 to extend the loan is also not challenged. Crl.R.P. NO. 1389 OF 2009 **==> picture [26 x 8] intentionally omitted <==** 15. The explanation offered by the accused was found to be artificial and highly improbable by both the Courts below. Even assuming that PW1 has acquaintance with Sri.Radhakrishnan, it does not lead to the conclusion that the cheque was obtained from Radhakrishnan. 16. It was under the above circumstances that this Court held that the complainant is entitled to rely on the principle under Section 139 and Section 118 of NI Act. When the explanation offered by the accused is found to be untenable, the only conclusion possible is that the cheque was, in fact, issued by the accused to the complainant as claimed by PW1. He had no satisfactory explanation as to how the complainant had come into possession of the cheque containing his signature. At the risk of the repetition, it may be noticed that there is no suggestion to PW1 that the particulars in the cheque were not in the hand writing of the accused and it was in the hand writing of PW1 or someone Crl.R.P. NO. 1389 OF 2009 **==> picture [26 x 8] intentionally omitted <==** else at the behest of PW1. These aspects loom large. Therefore, it could not be said that the findings of the Courts below on appreciation of evidence are not possible and probable view. Hence, it is found that this revision petition is without merits and liable to be dismissed. The accused shall appear before the Court below on 01.03.2012 for receiving the sentence. ## **P. BHAVADASAN, JUDGE** bka/-