## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN**
**TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930**
**CRL.A.No.358 of 2008 (D)**
**------------------------------**
**ORDER IN CRL.L.P.1158/2007 Dated 06/11/2007 CC.1163/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA**
**....................**
## **APPELLANT: COMPLAINANT:**
**---------------------------------**
**SURESH.R.PISHARADY, ARUNALAYAM, THIRUMARADY P.O., THIRUMARADY.**
**BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR**
## **RESPONDENTS: ACCUSED AND STATE:**
**--------------------------------------------**
**1. JOHNY GEORGE, SUPERVISOR, MOST PRODUCT OF INDIA, EDAYAR, KOOTHATTUKULAM.**
**2. PHILOMINA, W/O.JOHNY GEORGE, LECTURER, DEPARTMENT OF BOTANY, NEWMAN COLLEGE, THODUPUZHA.**
**3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## K.P.BALACHANDRAN, J.
-----------------------------------------------Crl. Appeal No.358 of 2008
-----------------------------------------------Dated this the 8[th] day of April, 2008
## **JUDGMENT**
The complainant in C.C.1163/03 on the file of the Judicial First Class Magistrate's Court, Muvattupuzha is the appellant. He assails in this appeal the acquittal of respondents 1 and 2 by the Magistrate of offence under Section 138 of the N.I Act vide Section 255(1) of the Cr.P.C.
2. The appellant filed complaint in the
court below inter alia alleging that the respondents came to his house at Thirumaradi and borrowed a sum of Rs.40,000/- on the
assurance that the amount shall be returned within one month; that being friends he advanced the said amount on loan; that on demand for repayment of the said amount respondents 1 and 2 jointly issued Ext.P1 cheque dt.21/05/02 drawn on their account with
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the State Bank of India, Muvattupuzha branch; that the cheque when presented for collection through his account with the Kakkoor branch of the State Bank of Travancore it was returned dishonoured by the drawee bank on 03/07/02 under Ext.P2 memorandum assigning the reason “insufficient funds”; that the cheque along with Ext.P2 memorandum was returned by his bankers on 03/07/02 vide Ext.P3 memorandum that thereupon, the original of Ext.P4 notice was issued to respondents under Ext.P5 postal registration receipt intimating them of the dishonour of the cheque and demanding payment of the amount covered by the said cheque; that the said notice was received by the respondents under Ext.P6 series acknowledgment cards; but they have not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and they have thereby committed an offence punishable
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under Section 138 of the N.I. Act.
3. The learned Magistrate recorded the sworn statement of the appellant/ complainant and registered the case on the file of his Court as C.C.1163/03 taking cognizance of the offence under Section 138 of the N.I. Act.
4. On issuance of summons, the
respondents entered appearance and they were served with copies of all relevant records in the case. Thereafter, the learned Magistrate questioned the respondents reading over the particulars of the offence and explaining it to them. Thereupon, they pleaded not guilty and consequently, a trial of the case was conducted by the court below.
5. On the side of the appellant, PW1 is examined and Exts.P1 to P6 were got marked. On the appellant closing his evidence the respondents were questioned by the court below under Section 313 Cr.P.C. Thereupon, they
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generally denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. The first respondent had admitted receipt of notice. According to him, the cheque was given to one A.S.Sajeevan and he has no acquaintance at all with the appellant. According to the second respondent, she has not at all signed in Ext.P1 cheque.
6. On the defence side the second
respondent has given evidence as DW1 and has got examined the Manager of the Muvattupuzha branch of the State Bank of India as DW2 and they got marked in evidence Exts.D1 to D4. The court below considered the case in the light of the evidence adduced as aforesaid; found the respondents not guilty of offence punishable under Section 138 of the N.I. Act and acquitted them of the said offence vide Section 255(1) of the Cr.P.C. Hence, this
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appeal by the aggrieved appellant.
7. It is contended before me by the learned counsel for the appellant that the court below went wrong in coming to the conclusion that the respondents are not guilty of offence punishable under Section 138 of the N.I. Act. It is argued that the observation that the appellant is not having a definite case regarding lending and issuance of cheque and that the evidence adduced on the side of the respondents is sufficient to rebut the presumption under Section 139 of the N.I. Act is without a proper appreciation of the divergent cases set up by the appellant and the respondents and that on a proper appreciation of the evidence in the case, the respondents could have been found guilty of offence punishable under Section 138 of the N.I. Act and convicted for the said offence.
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8. In the instant case, it stands established on evidence and is not disputed either that Ext.P1 cheque was being dishonoured for want of sufficient funds in the joint account of the respondents to honour the said cheque. All statutory requirements which are prerequisites for the maintainability of a complaint under Section 138 of the N.I. Act also stands complied with in the instant case. The burden to establish the case alleged is on the appellant/complainant himself. It is his case that the respondents/accused came to his house at Thirumozhi and borrowed a sum of Rs.40,000/- on the assurance that it would be returned within one month and that on demand for repayment of the amount respondents 1 and 2 jointly issued Ext.P1 cheque dt.21/05/02 drawn on their account at the Muvattupuzha branch of the State Bank of India. The appellant as PW1 deposed that he is having
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grocery business; that the amount was being advanced to the respondents during April, 2002 that the amount was being handed over to the first respondent and that cheque was issued to him on 21/05/02. According to him, the first respondent was bringing a duly filled up cheque and was signing therein in his presence. There is no mention that both the respondents came together and that both of them signed in his presence. What is stated also is that he advanced amount to the first respondent delivering it to the first respondent in his hands. He further stated that he was not advancing the amount for getting interest and that the respondents were coming over to his house with the cheque and delivering it to him without any demand made by him and that he had not gone to the house of the respondents. This is contrary to his statement in the complaint that when he
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demanded repayment of the amount was Ext.P1 cheque issued to him. He has admitted when cross examined that the signature of the second respondent seen in Ext.P1 and in the Vakalath executed by her are different and not similar. It is the case of the second respondent also that she has not signed in Ext.P1 cheque. DW2 the Bank Manager also has given evidence that the signature of the second respondent seen in Ext.P1 cheque is not the signature of R2 seen in the specimen signature card and that those are at variance. There is no evidence in the case adduced by the appellant to show that the cheque is signed by the second respondent as well. In the absence of proof on that aspect it cannot be said that the cheque is genuine, as the signature in Ext.P2 cheque issued in a joint account of respondents 1 and 2 is not that of the second respondent but is a signature
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forged. Further, there is absolutely no evidence adduced on the side of the appellant to show that he was having sufficient funds with him to advance so much amount as Rs.40,000/- to the respondents on the mere asking and that too without any record. Issuance of cheque on 21/05/02 according to the appellant is after a month of his advancing the amount of Rs.40,000/-.
9. It is contended by the counsel for the appellant that the formal evidence adduced by the appellant by tendering evidence as PW1 along with the presumption available under Section 139 of the N.I. Act would establish the case of the appellant. The said contention also is not tenable in view of the decision of the Apex Court in _Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC)_ wherein the Apex Court has held that the presumption under Section 139 of the N.I. Act is not regarding the
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existence of any debt or regarding the existence of any legally enforceable/ recoverable debt but that the only presumption available under Section 139 of the N.I Act is that the holder of the cheque received the cheque in discharge of any debt or other liability. Thus, there is no presumption as regards the amount advanced and that is a matter which the appellant ought to have established. Apart from Ext.P1 there is absolutely nothing in evidence in the case other than the interested testimony of PW1 to the effect that he advanced Rs.40,000/- to the respondents one month prior to issuance of Ext.P1 cheque and that Ext.P1 cheque was being issued in discharge of the said debt. Thus, for want of sufficient evidence as regards the existence of debt as also for want of evidence in proof of execution of Ext.P1 cheque also by the second respondent, no conviction could be
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entered into against respondents 1 and 2 as rightly found by the court below. In the circumstances, the acquittal of respondents 1 and 2 by the court below has only to be confirmed and this appeal dismissed as being devoid of any merit.
10. In the result, confirming the acquittal of respondents 1 and 2 of offence under Section 138 of the N.I. Act by the court below, I dismiss this Criminal Appeal.
K.P.BALACHANDRAN, JUDGE
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