Steephen s/o Thozhuthumpambil Poulose v. Sudhi and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **CRL.A.No.287 of 2010** **AGAINST THE ORDER IN CC 389/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA DATED 05-12-2009** **AGAINST THE ORDER IN Crl.L.P.120/2010 of HIGHCOURT DATED 08-022010** ## **APPELLANT/COMPLAINANT:** **STEEPHEN,S/O.THOZHUTHUMPARAMBIL POULOSE, CHELUR DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV. SRI.RAJESH CHAKYAT** ## **RESPONDENTS/ACCUSED:** **1 SUDHI, S/O.ALINGAL VEETTIL GOVINDAN, MUNJANAD DESOM, PADIYUR VILLAGE, MUKUNDAPURAM TALUK.** **2 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) SR.PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON 02.08.2019 PASSED THE FOLLOWING:** Crl.Appeal No.287/2010 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.287 of 2010 -------------------------------------------Dated this the 2[nd] day of August, 2019 ## **J U D G M E N T** The appellant is the complainant. Challenge in the appeal is directed against the judgment of the trial court acquitting the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant is as follows: The complainant and the accused were acquainted with each other. The accused had borrowed an amount of Rs.35,000/- from the complainant. When the complainant demanded repayment of the amount, the accused signed a cheque dated 28.09.2007 for Rs.35,000/- and gave it to him. The complainant presented the cheque in the bank. It was dishonoured for the reason that Crl.A.No.287/2010 3 there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused did not claim the notice. He did not pay the amount. 3. During the trial of the case, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. No evidence was adduced by the accused. The trial court found that the complainant failed to prove execution of the cheque by the accused and the presumption under Section 139 of the Act cannot drawn in his favour and found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him. 4. Heard learned counsel for the appellant and also the first respondent/accused and perused the records. 5. Ext.P1 is the cheque dated 28.09.2007 for Rs.35,000/alleged to have been executed by the accused and delivered by him to the complainant. Ext.P2 memorandum dated 01.10.2007 issued from the bank shows that the cheque was returned unpaid Crl.A.No.287/2010 4 for the reason that there was no sufficient amount in the account of the accused. Ext.P3 memorandum shows that it was on 11.10.2007 that intimation regarding the dishonour of the cheque was given to the complainant from his bank. Ext.P4 is the copy of the lawyer notice sent by the complainant to the accused demanding payment of the amount of the cheque. It is dated 16.10.2007. Ext.P6 is the cover containing the lawyer notice which was returned to the complainant. It bears the endorsement made by the postal authority that “Unclaimed. Returned to sender”. The complaint was filed on 24.11.2007. 6. The complainant was examined as PW1. In examinationin-chief (proof affidavit) he has given evidence in tune with the averments in the complaint. 7. PW1 has stated on cross examination that it was on 16.08.2007 that the accused requested him to lend the money. He has stated that he gave the amount to the accused on 28.08.2007. He would say that the accused made the entries in the cheque and signed it and gave it to him. 8. The plea of the accused is that he had borrowed Crl.A.No.287/2010 5 Rs.5,000/- from one Vincent, a friend of the complainant, and he had given the cheque as security at the time of that transaction. It is alleged by the accused that he had repaid Rs.12,000/- to Vincent but the cheque was not returned to him and that the complainant has misused the aforesaid cheque and filed the complaint against him. 9. No evidence was adduced by the accused to prove that he had borrowed any amount from any friend of the complainant. No evidence was adduced by him to prove that he had given Ext.P1 cheque as security to any person in any transaction. Not even a suggestion was made to PW1 that the accused had given any signed blank cheque to any person. 10. The trial court has found that the complainant failed to prove execution of the cheque by the accused. PW1 has given evidence that the accused made the entries in the cheque and signed it and gave it to him. This evidence given by PW1 is sufficient to prove execution of the cheque by the accused. 11. The accused has no case that Ext.P1 cheque does not Crl.A.No.287/2010 6 bear his signature. There is primarily the evidence of PW1 to explain the circumstances under which he came into possession of Ext.P1 cheque admittedly drawn on a cheque leaf issued to the accused by his bank to operate his account and which admittedly bears his signature. The crucial question is whether the oral evidence of PW1 can be accepted. 12. The trial court was not inclined to accept the evidence of PW1 as reliable mainly for three reasons. They are: (1) There is no averment in the complaint with regard to the date on which the accused borrowed the amount and the date on which the accused gave the cheque. (2) PW1 stated on crossexamination that the accused gave him the cheque on 26.08.2007, that is, even before the date of borrowing the amount. (3) The name of the payee, the amount in figures and the date are written in the cheque in the same handwriting but the amount in words are written in a different handwriting. 13. Absence of averment in the complaint with regard to the date of borrowing the amount is not necessarily fatal in all Crl.A.No.287/2010 7 cases. It would depend upon the facts and circumstances of each case. In the instant case, absence of averment in the complaint as to the date of the transaction does not assume any significance. Regarding the date of issuing the cheque, it is to be noted that there is a presumption under Section 118(b) of the Act that every negotiable instrument bearing a date was made or drawn on such date. 14. PW1 has stated on cross examination that it was on 28.08.2007 that the accused borrowed the money from him. But, he has stated that the accused gave him the cheque on 26.08.2007. The trial court has found that it was not probable that the cheque was issued on a date prior to the date of the original transaction. Learned counsel for the appellant has contended that it was only an inadvertent mistake committed by PW1 in stating the date of issuing the cheque. There is force in this contention. The statement made by PW1 that the accused gave him the cheque on 26.08.2007 cannot be read in isolation. Before making such statement, PW1 had stated that when he Crl.A.No.287/2010 8 demanded repayment of the money, the accused did not give him the amount. It is, thereafter, PW1 stated that the accused gave him the cheque on 26.08.2007. Therefore, there can be no doubt with regard to the fact that it was only a mistake committed by PW1 in stating the date on which the accused issued the cheque. The aforesaid statement given by PW1 is to be read in continuation of the previous statement made by him. The mistake committed by PW1 in stating the date of issuing the cheque is not sufficient to discard his entire evidence. 15. The trial court has also found that the name of the payee, the amount in figures and the date in the cheque are written in the same handwriting but the amount in words are written in a different handwriting. Therefore, the trial court found that the evidence of PW1 that the accused himself made the entries in the cheque cannot be believed. I have perused the cheque. I find no such difference in the handwriting in the entries in the cheque. Even the accused has no case that different entries in the cheque are in different handwriting. Not Crl.A.No.287/2010 9 even a suggestion was made to PW1 in the cross examination that the different entries in the cheque are in different handwriting or that the amount in words is written in the cheque in a different handwriting. 16. In the aforesaid circumstances, the evidence of PW1 cannot be disbelieved on any of the grounds stated by the trial court in the impugned judgment. 17. On broad probabilities, there is no reason to doubt or suspect the statement on oath of PW1. The fact that the accused has no reasonable and probable explanation as to how the cheque travelled from his possession to that of the complainant is certainly a crucial aspect, while considering the acceptability of the evidence of PW1. 18. The denial of execution and transaction canvassed by the accused, necessarily, has to be appreciated in the totality of the facts and circumstances presented in the case. It is wellsettled that where execution of the cheque is denied it has to be proved by the complainant. But, what is the rigour of proof that Crl.A.No.287/2010 10 is required to prove the execution, where there is denial by the accused, depends upon the facts and circumstance involved in the case. 19. In the instant case, there is no sufficient reason to disbelieve the evidence of PW1 that the accused made the entries in the cheque and signed it and gave it to him. When the evidence of PW1 is appreciated in the totality of the facts and circumstances presented in the case and in the context of the unreasonable and improbable plea raised by the accused, it can very well be found that his evidence is sufficient to prove that Ext.P1 cheque was drawn and delivered to him by the accused. 20. Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption had been established. It is a presumption of law as distinguished from a presumption of fact. When the facts Crl.A.No.287/2010 11 required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the case of a mandatory presumption, the burden which rests on the accused person would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable (See **Hiten P. Dalal v. Bratindranath Banerjee: AIR 2001 SC 3897** ). 21. In the present case, no attempt whatsoever was made by the accused to rebut the presumption under Section 139 of Crl.A.No.287/2010 12 the Act. It is not essential that the accused should adduce evidence of his own to rebut the presumption. It is enough if he succeeds in discharging the burden to rebut the presumption by the cross examination of the complainant or by bringing in probabilities in his favour and improbabilities against the complainant. But he has to prove that his version is probable and acceptable and competes in probabilities convincingly with the version of the complainant. That burden remains undischarged in the facts and circumstances of this case. 22. The discussion above leads to the conclusion that the complainant had proved that the accused had drawn and delivered Ext.P1 cheque to him. The accused could not rebut the presumption under Section 139 of the Act. It follows that the complainant has been able to prove that the accused committed an offence punishable under Section 138 of the Act. The impugned judgment of acquittal warrants interference. 23. Coming to the question of sentence, it is to noted that an offence under Section 138 of the Act is almost in the nature of Crl.A.No.287/2010 13 a civil wrong which has been given criminal overtones. Direction to pay compensation to the complainant, by way of restitution in regard to the loss on account of dishonour of the cheque shall be made, which would mean not only payment of the cheque amount but interest thereon at a reasonable rate. 24. In the result, the appeal is allowed and it is ordered as follows: (i) The judgment of the trial court acquitting the accused of the offence punishable under Section 138 of the N.I. Act is set aside. (ii) The first respondent/accused is found guilty of the offence punishable under Section 138 of the N.I.Act and he is convicted thereunder. (iii) The first respondent/accused is sentenced to undergo imprisonment till the rising of the court. He is further directed to pay an amount of Rs. 60,000/- (Rupees sixty thousand only) as compensation to the appellant/complainant under Section 357(3) Cr.P.C and in default of payment of Crl.A.No.287/2010 14 compensation, to undergo simple imprisonment for a period of one month. (iv) The first respondent/accused is granted time till 31.08.2019 for payment/deposit of the amount of compensation in the lower court. He shall appear in the Magistrate's Court concerned before that date to undergo the imprisonment awarded. (v) If the first respondent/accused fails to comply with the above directions, the Magistrate concerned shall take steps to execute the sentence against the accused. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/30/07/2019 True Copy PS to Judge