Sree Gokulam Chit & Finance Co. (P) Ltd. v. Shamji Thomas Alexander and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934 CRL.A.No. 2388 of 2009 ( ) --------------------------AGAINST THE JUDGMENT IN ST NO.177/2007 of J.M.F.C.IV (MOBILE COURT), THIRUVANANTHAPURAM. DATED 24-04-2009 ## APPELLANT/COMPLAINANT: ----------------------------- M/S.SREE GOKULAM CHIT & FINANCE CO.(P) LTD., COLLECTION CENTRE, MATHU MEMORIAL BUILDING KOCHU ULLOOR, ULLOOR P.O., THIRUVANANTHAPURAM. REP.BY IT'S AUTHORIZED REPRESENTATIVE ANAND S/O.P.BABU, WORKING AS LEGAL ASSISTANT, SREE GOKULAM CHIT & FINANCE CO.(P) LTD., DIVISIONAL OFFICE, TC 4/1037(2)(3), HEERA PALACE, KOWDIAR, THIRUVANANTHAPURAM. BY ADVS.SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S)/ACCUSED & STATE: ----------------------------------------- 1. SHAMJI THOMAS ALEXANDER, AGED 47 YEARS, S/O. ALEXANDER, P.T.T.C.36/519(8) PGRA-G1, EANCHAKKAL, THIRUVANANTHAPURAM-6. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY ADV. SRI.G.P.SHINOD R1 BY ADV. SRI.RAM MOHAN.G. R1 BY ADV. SRI.MANU V. R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.A.No.2388 of 2009 ---------------------------Dated 17[th] January, 2013 ## **JUDGMENT** This appeal is directed against the judgment of acquittal dated 24.4.2009 passed by the Court of Judicial First Class MagistrateIV (Mobile Court), Thiruvananthapuram in S.T.No.177 of 2007. The appellant herein was the complainant and the first respondent herein was the accused therein. The appellant's complaint against the accused alleging commission of offence under Section 138 of the Negotiable Instruments Act was taken on file and registered as S.T.No.177 of 2007. The case of the appellant/complainant, in succinct, is as follows:- The accused issued Ext.P1 cheque dated 26.4.2006 for Rs.4,75,800/- towards the discharge of his liability to the complainant company arising out of a chitty transaction. On its presentation, it was dishonoured on the ground `fund insufficient' on 12.5.2006 and that the complainant received the said intimation on 13.5.2006. The statutory notice demanding the amount covered by Ext.P1 cheque was caused to be issued on 30.5.2006 and despite its receipt the first respondent did not respond to it or effect payment of the amount covered by the said cheque within the statutorily prescribed period. It is in the said Crl.A.No.2388/2009 2 circumstances that the complaint was filed inter alia, with the above allegations. 2. On appearance of the accused, copies of the relevant records were furnished to him and then, the particulars of the offence were read over and explained to him. The accused pleaded not guilty. To prove the case of the complainant PW1 was examined and Exts.P1 to P6 were got marked. Ext.P1 is the cheque involved in this case. Ext.P2 is the dishonour memo dated 12.5.2006 and Exts.P3 and P4 are respectively copies of lawyer notice and postal receipt. Ext.P5 is the postal acknowledge dated 7.6.2006 and Ext.P6 is the certified copy of the power of attorney executed in favour of PW1. After closing the evidence of the complainant the accused was questioned under Section 313 of the Code of Criminal Procedure. The accused admitted that Ext.P1 cheque pertains to his account and also his signature thereon besides the factum of receipt of statutory notice. He denied all the incriminating circumstances put to him and additionally stated that he had issued only a blank cheque while receiving the prize money of a chitty conducted by the company and in which he was a subscriber and further that the amount shown in the cheque is imaginary. Exts.D1 to D3 were marked to support his version. The trial court evaluated the evidence on record. It is common case that the accused was a Crl.A.No.2388/2009 3 subscriber to a chitty conducted by the complainant company and that he bid the same and received the prize amount. Essentially, the dispute is with respect to the execution of Ext.P1 cheque. The case of the complainant is that Ext.P1 was issued in discharge of a legally enforceable debt owing to the company arising out of a chitty transaction whilst, the case of the accused is that he issued only a signed blank cheque while receiving the prize amount of the chitty bid by him. After careful consideration of the evidence the trial court held that the appellant had failed to prove that Ext.P1 cheque was issued in discharge of a legally enforceable debt. The second and third points formulated for consideration were whether Ext.P1 cheque was dishonoured on the ground of insufficiency of funds and whether there was compliance with all statutory formalities prior to the lodging of the complaint. Based on the evidence those points formulated for consideration were also found against the appellant and consequently the accused was found not guilty of the offence under Section 138 of the Negotiable Instruments Act. Resultantly, the accused was acquitted under Section 255(1) Cr.P.C. This appeal is filed against the said judgment of acquittal. 3. The learned counsel for the appellant contended that the findings of the learned Magistrate is against the weight of evidence. It Crl.A.No.2388/2009 4 is contended that the trial court ought to have found that Ext.P1 cheque was duly executed and the appellant herein is therefore entitled to the benefit of presumption available under Section 139 of the Negotiable Instruments Act. It is further contended that the trial court went wrong in making comparison of the handwriting in Ext.P1 cheque with that of the cheques produced by the complainant company in S.T.No.1138 of 2007 and S.T.No.2462 of 2007. At the same time, the learned counsel would admit the fact that there is discrepancy, rather, a mistake crept in Ext.P2 dishonour memo with respect to the date it bore and that no steps were taken to adduce best evidence available to avert the suspicion arising out of it and to prove the correct date in accordance with law. There is also no case for the appellant that evidence was let in to prove the original transaction viz., the chitty transaction to show that the amount figured in Ext.P1 cheque is the liability arising out of the said chitty transaction. 4. It is common case that the first respondent/accused was a subscriber to a chitty conducted by the complainant and that the accused bid the same and received the prize amount. Therefore, essentially the dispute was whether Ext.P1 cheque was executed by the accused in favour of the complainant company for Rs.4,75,800/-. The consistent case of the accused is that he is not liable to pay the amount Crl.A.No.2388/2009 5 shown in Ext.P1 cheque and that he had to issue a signed blank cheque while receiving the prize amount of the chitty bid by him. 5. The first point to be considered is whether admission of signature in cheque would tantamount to admission of the execution of the cheque. That question is no more _res integra_ . This question was pointedly posed for consideration in the decision in **Joseph** v. **Gladis Sasi** reported in **2010 (3) KLT 379** and this Court held that admission of the signature in a blank cheque would not tantamount to the admission of execution of the cheque. That view would gain support from the decision of the Hon'ble Supreme Court in **Krishna Janardhan Bhat** v. **Dattatraya G. Hegde** ( **(2008) 2 SCC (Cri) 166** ). In the said circumstances, I cannot countenance with the contentions of the learned counsel for the appellant that the first respondent had virtually admitted the execution of Ext.P1 cheque by admitting the signature therein. In this context, it is also to be noted that the defence case is that the first respondent was a subscriber to one of the chitties conducted by the complainant company and he bid the same and obtained the prize amount and while receiving the prize amount he issued a blank cheque. The first respondent specifically denied the execution of Ext.P1 cheque. In such circumstances, in the light of the decision of this Court in **Gopan** v. **Tonny Varghese** ( **2008 (1) KLT 257** ) the presumption Crl.A.No.2388/2009 6 under section 139 of the Negotiable Instruments Act would not be applicable to the case of the appellant. Going by the said decision, when the execution of cheque is denied by the accused it is for the complainant to establish the same. In the context of the contentions raised by the learned counsel it is apposite to refer to the decision of this Court in **Santhi C.** v. **Mary Sherly** ( **2011 (3) KHC 22** ) wherein this Court elaborately considered the question as to how the execution of a cheque could be proved. Admittedly, PW1 is only a power of attorney holder of the complainant. With respect to the transaction, there is nothing on record to show that the complainant had adduced evidence that he had seen the execution of the cheque. In this context, it is also to be noted that there is no case that PW1 had in fact, seen the execution of Ext.P1 cheque. No other witness, who had actually witnessed the execution of the cheque was examined for the prosecution. Even in such cases opinion of expert can be let in as evidence in the light of Section 67 of the Evidence Act. The appellant had not adduced any such evidence. When that be the position, in the light of **Gopan's** case (supra) when the execution is disputed, the complainant has to let in evidence to prove the original transaction. Therefore, the question is what is the evidence let in by the appellant to prove the original transaction. The definite case of the appellant herein is that the liability arose out of a chitty transaction. In such Crl.A.No.2388/2009 7 circumstances, it is the duty of the appellant to establish that the figure mentioned in Ext.P1 is the amount that is legally recoverable and it arose from the chitty transaction involved in this case. None of the documents pertaining to the said chitty transaction was admittedly produced and legally brought into evidence. In such circumstances, I have no hesitation to hold that the appellant had failed to let in evidence to prove the original transaction. The other crucial aspects which are not disputed by the appellant herein are as follows:- 6. The trial court compared the handwriting in Ext.P1 with that of the cheques produced by the complainant in S.T.Nos.1138 and 2462 of 2007 at the instance of the accused. It is to be noticed in this context that the specific case of the appellant is that it was the accused who made the entries in Ext.P1. The learned counsel for the appellant argued that the learned Magistrate was not justified in making comparison. I am afraid the said contention cannot be countenanced in the light of the provisions under Section 73 of the Evidence Act. There can be little doubt with respect to the position of law that the said section confers ample power on the court to effect comparison. The appellant did not have a case that the cheques which were used for comparison were not the cheques produced by the appellant in S.T.Nos.1138 and 2462 of 2007. On comparison, the court found that Crl.A.No.2388/2009 8 the handwriting in Ext.P1 and the handwriting in the cheques produced in S.T.Nos.1138 and 2462 of 2007 got striking similarity. Apart from ground `G' there is no serious challenge against the finding with respect to the handwriting. As already noticed, the very contention of the appellant is that virtually there was no power for the court to effect such comparison which cannot be countenanced in the light of the aforementioned provision. 7. Ext.P2 is the dishonour memo pertaining to Ext.P1. The contention of the appellant is that Ext.P1 cheque was dishonoured on the ground of insufficiency of funds on 12.5.2006. At the same time, the dishonour memo bears the date 12.5.2007 instead of 12.5.2006. The learned counsel argued that it is only a mistake crept in Ext.P2. Section 4 of the Bankers' Books Evidence Act, 1891 deals with mode of entries in bankers' books. The term “bankers' books” is defined under section 2(3) of the Bankers' Books Evidence Act. When the appellant asserts that the date of dishonour is 12.5.2006 and not 12.5.2007 essentially, the burden is on the appellant to prove the same in the light of the provisions under Section 103 of the Evidence Act. Going by the provisions under Section 103 of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that Crl.A.No.2388/2009 9 fact shall lie on any particular person. It is in this context that Section 4 would assumes relevance. Going by Section 4 of the Bankers' Books Evidence Act, 1891 the entries in a banker's book shall be received as _prima facie_ evidence of the existence of such entries in all legal proceedings and shall be admitted as evidence of the matters, transactions and accounts therein. Therefore, if the appellant had a case that there was mistake crept in Ext.P2 the burden was on the appellant to prove the same. There is no case for the appellant that he had successfully discharged that burden to show that the date shown in Ext.P2 is wrong and in fact should have been 12.5.2006 going by the other relevant documents kept in the ordinary course of business by the bank. The Manager of the concerned Branch of the Bank was also not examined. In such circumstances, the findings as against point Nos.2 and 3 also cannot be said to be perverse or against the weight of evidence. I have already found that in view of the failure of the appellant to let in evidence to prove the original transaction and in view of the specific denial of execution of Ext.P1 and the failure on the part of the appellant herein to prove execution of Ext.P1, the finding of the learned Magistrate that the appellant failed to prove that Ext.P1 was issued in discharge of a legally enforceable debt also cannot be said to 10 Crl.A.No.2388/2009 be illegal. The evidence adduced by the first respondent/accused was sufficient to cast doubt on the credibility of the case of the appellant/complainant. In such circumstances, it cannot be said that the findings of the learned Magistrate in the impugned judgment of acquittal are perverse or against the weight of evidence. No _prima facie_ case has been brought out by the appellant to show that the impugned judgment invites appellate interference. In the said circumstances, this appeal is liable to fail and accordingly it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS