Thekkekkara T.C. Peter v. E.P. Rajeevan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH OCTOBER, 2008 / 14TH ASWINA, 1930 **CRL.A.No. 158 of 2002 (A)** ( CC.188/1999 of JUDL. FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM) .................... APPELLANT/COMPLAINANT: ---------------------------------- THEKKEKKARA T.C.PETER, PUTHUSSERY DESOM, CHOONDAL VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.P.RAMAKRISHNAN SMT.A.K.PREETHA RESPONDENTS/ACCUSED AND STATE: ----------------------------------------------- 1. E.P.RAJEEVAN S/O.PARAMESWARAN NAMBOODIRI,ELAYATHU MANA,HOUSE NO.12,A/XI, GURUVAYUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM ADV. SRI.K.S.BABU FOR R1 SMT.N.SUDHA FOR R1 BY PUBLIC PROSECUTOR FOR R2 SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No. 158 of 2002 - A --------------------------------------------Dated this the 6[th] day of October, 2008** ## **J U D G M E N T** The complainant in C.C.No.188 of 1999 on the file of the Judicial First Class Magistrate Court, Kunnamkulam is the appellant herein. In this appeal, he challenges the order of acquittal passed by the court below under Section 255(1) of the Code of Criminal Procedure. 2. C.C.No.188 of 1999 was instituted in the court below upon a complaint preferred by the appellant for the offence punishable under Section 138 of the Negotiable Instruments Act. The case of the complainant is that the accused borrowed a sum of Rs.92,800/- on 30.1.1998. According to the complainant, the said amount was given on the basis of the assurance given by the accused that the amount would be repaid within six months. It is the further case of the complainant that when he demanded for repayment of the amount, the accused issued two cheques of Kunnamkulam Co-operative Urban Bank for ## **Crl.A.NO.158 of 2002** ## **:-2-:** Rs.12,800/- and Rs.80,000/-. According to the complainant, when the cheques in question were presented for encashment, the same were returned for the reason 'funds insufficient'. It is also the case of the complainant that on receiving the intimation from the bank regarding the dishonour of cheques, he caused to send lawyer notice to the first respondent/accused informing him about the dishonour of cheques and requesting him to pay the amount. In spite of such demand, the accused did not pay the amount and hence, he filed the above complaint. The court recorded the sworn statement of the complainant and found that a prima facie case was made out under Section 138 of the N.I.Act and the case was taken on file. Summons were issued to the accused. When the accused appeared, particulars were read over to him who denied the same. Therefore, the trial of the case was continued further during which the complainant himself was examined as PW1 and Exts.P1 to P10 were marked. During the 313 questioning, the accused maintained a stand that he had **Crl.A.NO.158 of 2002** ## **:-3-:** received only a sum of Rs.10,000/- as loan from the complainant and he had given two blank cheques and stamp paper. It is the further case of the accused that the complainant had misused the above said cheques which are given as security. From the side of the defence, Ext.D1 was marked. On the basis of the rival contentions and the materials on record, the court below formulated five issues for its consideration. In respect of the first issue, as to whether the accused issued Exts.P1 and P2 cheques in discharge of a legally enforceable debt or other liability, the finding was in favour of the accused and against the complainant. Thus, the court below found that the complainant had failed to establish that Exts.P1 and P2 were issued by the accused in discharge of a legally enforceable debt. On the basis of the above finding, the accused was acquitted under Section 255(1) of the Cr.P.C. It is the above order of acquittal that is challenged in this appeal. 3. I have heard learned counsel for the appellant Sri.P.Ramakrishnan and Smt.N.Sudha, learned counsel ## **Crl.A.NO.158 of 2002** ## **:-4-:** ## for the first respondent/accused. 4. The learned counsel for the appellant submits that as long as the signatures contained in Exts.P1 and P2 are admitted by the accused and the accused failed to prove that they did not issue the said cheques, the finding of the court below is incorrect and liable to be set aside. Therefore, the counsel for the appellant submits that the finding of the court below is liable to be interfered with and to be set aside. On the other hand, the learned counsel for the first respondent submits that the complainant has miserably failed to establish that the cheques in question were issued towards the discharge of any liability. It is also pointed out by counsel that the accused had admitted the borrowal of Rs.10,000/- and also the civil action initiated by the complainant against the accused. Thus, according to counsel for the defence, the trial court had rightly held that the complainant had failed to establish any legally enforceable debt against the accused and thus supported the judgment of the court below. ## **Crl.A.NO.158 of 2002** ## **:-5-:** 5. I have carefully considered the contentions advanced by both counsel for the appellant as well as first respondent. 6. Counsel for the appellant on the strength of Exts.P1 and P2 cheques submits that the presumption is in favour of the complainant and the accused has not adduced any evidence to rebut the presumption and therefore, according to counsel, the court ought not have acquitted the accused. It is also the case of the appellant that the court below on a wrong understanding held that Exts.P1 and P2 cheques were not really executed by the accused. 7. The Apex Court in the decision reported in **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008 (1) KLT 425 (SC)] held that the existence of legally recoverable debt is not a matter of presumption under Section 139 and the said section does not raise a presumption in regard to existence of a debt also. In the present case, the oral evidence adduced through PW1 was not sufficient to instill the confidence of the court as ## **Crl.A.NO.158 of 2002** ## **:-6-:** his evidence contains contradiction and he made suitable improvements to get over the adverse circumstances. The accused had denied the execution of Exts.P1 and and P2 and the specific plea set up by the accused to the effect that he had received only a sum of Rs.10,000/- and issued two blank cheques as security. It is also brought on record that the complainant had already filed a suit against the accused as evidenced by Ext.D1, and the complainant during the crossexamination admitted that he had filed the above suit for realising the amount of Rs.1,04,324/-. It is also admitted by the complainant that as on 30.1.1998, the outstanding balance was Rs.92,800/- and there is no other amount due from the accused. But, on a perusal of Ext.D1, it can be seen that the suit amount is only Rs.80,000/- and the date of borrowal is 11.9.1998. The trial court, on a comparison of the date of borrowal mentioned in Ext.D1, had found that the said date has some relevance because the cheques in question are dated 30.12.1998. So, according to the court below, the ## **Crl.A.NO.158 of 2002** ## **:-7-:** case of the complainant with respect to the date on which the amount given is contradictory and it is not proved beyond doubt. The trial court, after perusal of Exts.P1 and P2, concluded that the payee's name, amount and date were not put in the handwriting of the accused. Thus, on the basis of the above discussion and observation especially on the basis of the admission of the complainant, the trial court came into a conclusion that the cheques were not executed by the accused. On the basis of the decision of this Court reported in **C.T.Joseph** v. **I.V.Philip** [2001(1) KLJ 654], the trial court was of the opinion that the presumption under Section 118 of the N.I.Act arose only if the execution of the documents proved as true. Learned counsel for the first respondent, based upon the decisions of the Apex Court reported in **Krishna Janardhan Bhat** 's case (cited supra) and the decision of this Court reported in **Gopan** v. **Tonny Varghese** [2008(1) KLT 257], submits that in the facts and circumstances of this case, the complainant has not made out a case to attract Section **:-8-:** ## **Crl.A.NO.158 of 2002** 138 of the N.I.Act, especially, when the complainant has miserably failed to prove the execution of the cheques in question. 8. Going by the evidence and materials on record, it can be seen that the court below had rightly held that the complainant had miserably failed to establish that Exts.P1 and P2 cheques were issued by the accused towards the discharge of a legally enforceable debt. Nothing is brought out to take a different view. In the light of the above facts and circumstances, the appeal is devoid of merit and the same is accordingly dismissed. **V.K.Mohanan, Judge** MBS/ ## **Crl.A.NO.158 of 2002** ## **:-9-:** ## **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO.158 OF 2002 -------------------------------------------- **J U D G M E N T** ## **Crl.A.NO.158 of 2002** ## **:-10-:** DATED:6-10-2008