T.P.DEVASIA v. A. SELVARAJ & STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 CRL.A.No. 387 of 2001() ----------------------- CC.144/1999 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA CRL.M.C. 1398/2001 OF THIS COURT .................... APPELLANT/COMPLAINANT: -------------------------------------------- T.P.DEVASIA THIRUTHALIL HOUSE, NEELOORKARA KANDANADU VILLAGE BY ADV. SRI.N.A.MURALEEDHARAN RESPONDENTS/ACCUSED & STATE: -------------------------------------------------------- 1. A. SELVARAJ, BETHEL HOUSE PRAVICHAMBALAM P.O. THIRUVANANTHAPURAM 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.J.DEVADANAM FOR R1 SRI.VINOD J.DEV FOR R1 SRI.PRAMOD J.DEV FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 387 OF 2001 ------------------------------Dated this the 3[rd] November, 2008. ## JUDGMENT This is an appeal at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. As per the impugned judgment the trial court acquitted the accused. 2. The case of the complainant is that he is engaged in the business of buying and selling of timber trees and he used to sell timber trees to the accused who is the owner of Bethel Wood Industries and Sheeja Mills etc. at Thiruvananthapuram and there was frequent transaction between the complainant and the accused. Thus, according to the complainant, he had sold 547 cubic feet of timber worth Rs.2,48,500/- to the accused on 1.10.1998. Towards the price of the same the accused paid only Rs.1,70,000/- and for the balance price, the accused had issued post-dated cheque for Rs. 78,500/-. Thus, according to the complainant, the said cheque when presented for encashment was dishonoured. Ext.P1 is the post-dated cheque given by the accused bearing date as 15.12.1998. Ext.P2 is the memo. On receiving Ext.P2 memo the Crl. Appeal No: 387/2001 2 complainant had sent Ext.P4 lawyer notice intimating the accused regarding the dishonour of cheque and also demanding the accused to pay the amount. Exts.P5 and P6 are postal receipts and acknowledgment card respectively, to prove service of notice on the accused. Ext.P7 is the reply notice issued by the accused. When the accused was questioned under Section 313 of Criminal Procedure Code, he denied of the incriminating circumstances came out through the evidence and he further added that the transaction was settled by the month of October 1998 and a sum of Rs.69,000/- was paid to P.W.1 but the cheque was not returned. 3. On the basis of the rival contentions and pleading, the court below considered three questions for its consideration. After consideration of the matter, the trial court is of the opinion that the entire case of the complainant is under doubt and failed to prove the genuineness of the claim and as such the contentions does not inspire confidence. Thus accordingly found that the accused is not found guilty and he is acquitted. It is the above order of acquittal that is challenged in this appeal. 4. I have heard counsel for the appellant as well as the Crl. Appeal No: 387/2001 3 respondents-accused. 5. Going by the averments taken by both the appellant as well as the respondents-accused, it can be seen that the transaction between the complainant and the accused are admitted. The case of the appellant is that the total value of timber which sold by him to the accused will come to the tune of Rs.2,48,500/- and out of that amount only a sum of Rs.1,70,000/- was given on the date of sale and for the remaining amount of Rs.78,500/- the accused issued Ext.P1 cheque. On the other hand the case of the defence is to the effect that the transaction was settled and a sum of Rs.69,000/- was given to the complainant, but he did not returned the cheque. In the light of the above facts and circumstances, the question to be considered is whether Ext.P1 cheque was executed and issued by the accused in favour of the complainant towards the discharge of any debt or liability which due to the complainant from the accused. When the complainant was examined as P.W.1 he had deposed in terms of the averments contained in the complaint. As the transaction was admitted, other details need not be looked into. But it appears that the case of the defence is to the effect that 4 Crl. Appeal No: 387/2001 Ext.P1 cheque was not issued towards the discharge of any legal debt and he did not execute and issued the said cheque as claimed by the complainant. According to him the blank cheque which was given to the complainant as security was misused by him for the purpose of the present case. Going by the complaint and the oral testimony of P.W.1 it can be seen that his case was to the effect that towards the said transaction and discharge of the debts the accused issued the cheque in question which contained his signature. According to the complainant the details shown in Ext.P1 cheque was endorsed by him. During the chief examination itself what he had stated is that for the remaining amount of Rs.78,500/- the accused had issued a post-dated cheque. It was also stated that the same was given at the residence of the accused. He had also stated that the mill and residence of the accused are in the same compound. He had denied the suggestion that the account connected with the timber business was settled. He had also denied the suggestion that the cheque in question was a signed blank cheque given as a security. During the cross-examination the complainant has stated that the amount and date was endorsed by Crl. Appeal No: 387/2001 5 the accused. It is also stated that it was at the residence of the accused the cheque was given and at that time besides the complainant and the accused, the wife of the accused was also there in the residence. There is no cross-examination with respect to the other endorsements contained in Ext.P1 cheque. During the 313 statement there is mention about the blank cheque. But during cross-examination it was suggested that towards the transaction four blank cheques were given. Learned counsel for the appellant pointed out that when Ext.P7 reply notice was issued the accused was not having the case of entrustment of four blank signed cheques. Thus, going by the averments and evidence it can be seen that according to the complainant when the cheque was given, the date and the amount endorsed by the accused contained his signature. But it appears that the trial court, on the basis of two petitions filed by both the complainant as well as the accused came into a conclusion that the evidence given by the complainant is unbelievable. It appears that when the case was posted for defence evidence the accused filed Criminal Petition No: 5543/2000 urging that the amount and the date written in the cheque were not in his Crl. Appeal No: 387/2001 6 handwriting and requested the court to send the cheque expert opinion and to ascertain the above facts. The court found that the complainant had subsequently filed Criminal Petition No: 5543/2000 stating that the cheque was written by the wife of the accused and prayed in that petition that the said cheque may be sent to an expert and also the specimen hand writing of the wife of the accused. The court had dismissed both these petitions. But based upon the petition filed by the complainant, the court has opined that the complainant dishonoured the evidence given by him and set up entirely a different version. The court has thus observed against the complainant as follows: “ This amounts to an admission that the accused is the author of the signature alone and it was not he who filled up the cheque. This is diametrically opposite to his case that the accused filled up the cheque, signed and delivered it to him and he and the accused alone were present then. His evidence is false. This makes probable the defence version that what the accused gave was a Crl. Appeal No: 387/2001 7 signed blank cheque and it was given as a security for the transactions between him and the complainant.” 6. In the light of the evidence which I referred above it appears to me that the above finding and observations of the court below opposed to the evidence on record. As pointed out earlier, even according to the complainant when Ext.P1 cheque was given the date and the amounts were already endorsed in the cheque and the same contained the signature of the accused. In the light of the two decisions of this Court in Moideen v. Johny {(2006(3) KLT Short Note Page 62 Case No: 85) and General Auto Sales v. Vijayalakshmi {2005(1) KLT 478} held that even if a blank cheque has been given towards liability or even as security, when liability is assessed and quantified, if cheque is filled up and presented to bank, person who had drawn the cheque cannot avoid criminal liability under Section 138 of the Negotiable Instruments Act. 7. In the present case as the transaction between the complainant and the accused are admitted it is for the accused at least to make out a probable case to rebut the presumption Crl. Appeal No: 387/2001 8 available in favour of the holder of the cheque in question, apart from mere suggestion, unsupported by any materials for the same. It is relevant to note that when the accused issued Ext.P7 reply notice no case of entrustment of four signed blank cheques with the complainant was stated. I have already found that no adverse inference can be drawn on the basis of the petition filed by the complainant for sending Ext.P1 to the handwriting expert to prove that the endorsement contained in the cheque was that of wife of the accused. There is no evidence or averments to the effect that all the endorsements in Ext.P1 cheque was made by the accused himself. The evidence is to the effect that when the signed cheque was handed over to the complainant by the accused, the date and amount was endorsed. It is also relevant to note that no further step was taken by the accused though the petition filed by him was dismissed by the court below. 8. When the complainant was examined as P.W.1 he had categorically stated that Ext.P1 cheque is a post-dated one which was issued on 1.10.1998. It is also stated that the cheque was given by endorsing the date as 15.12.1998. The trial court instead Crl. Appeal No: 387/2001 9 of considering the above substantial evidence, simply given unnecessary and unwarranted importance to the date in Ext.P4 lawyer notice mentioned as 15.12.1998 stated that the genuineness of the case of the complainant is doubtful. The above approach is incorrect and it cannot be justified. 9. In the light of the above discussion and the materials on evidence shows that Ext.P1 cheque was issued by the accused towards the discharge of the legally recoverable debt which was due to the complainant and as the cheque was dishonoured for want of funds in the account maintained by the accused and hence he is liable to be convicted under Section 138 of the Negotiable Instruments Act. Accordingly the order of acquittal passed by the court below is reversed and the accused is convicted under Section 138 of the Negotiable Instruments Act. V.K.MOHANAN JUDGE jj Crl. Appeal No: 387/2001 10 V.K.MOHANAN, J. -------------------------CRL. APPEAL NO: 387 OF 2001 -------------------------- JUDGMENT DATED: 3RD NOVEMBER, 2008.