T.S. Bobachan v. M. Rejimon, Jameela Manzil, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937** **CRL.A.No. 536 of 2011 ( )** **-------------------------Crl.L.P. 965/2010 OF HIGH COURT OF KERALA** **CRA 95/2008 OF THE ADDITIONAL SESSIONS COURT, KOTTAYAM S.T.NO.250/2006 OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, KOTTAYAM** **APPELLANT(S)/2ND RESPONDENT/COMPLAINANT:** **-----------------------------------------** **T.S.BOBACHAN,(ERRONEOUSLY SHOWN AS G.S.BOBACHAN IN THE JUDGMENT OF THE COURT BELOW) RESIDING AT THADATHIL HOUSE, ELAMPALLY PO, ANICADU KOTTAYAM 686 503.** **BY ADV. SRI.ABRAHAM GEORGE JACOB** **RESPONDENT(S)/APPELLANT AND 1ST RESPONDENT/ACCUSED AND STATE: -----------------------------------------------------------** **1. M.REJIMON, JAMEELA MANZIL, PANAMATTOM PO, KOTTAYAM PIN 686 522.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **R1 BY ADV. SRI.PETER ISAAC R1 BY ADV. SRI.ABEESH JOSE R1 BY ADV. SRI.A.S.ANILKUMAR (VANCHIMALA) R2 BY PUBLIC PROSECUTOR SRI.R.GITHESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SCL.** ## **B. SUDHEENDRA KUMAR, J.** ## **-------------------------------------** Crl.A No.536 of 2011 -------------------------------------Dated this the 5[th ] day of January, 2016 ## **JUDGMENT** The complainant in S.T.No.250 of 2006 on the files of the Court of the Judicial Magistrate of First Class-I, Kottayam, has filed this appeal challenging the judgment of the appellate court, acquitting the accused for the offence under Section 138 of the N.I.Act. 2. The prosecution allegation is that towards the discharge of the liability to the complainant, the accused issued Ext.P1 cheque in favour of the complainant. The complainant presented the said cheque for encashment. However, the same was dishonoured due to the insufficiency of funds in the account of the accused. Statutory notice was received by the accused. However, the accused did not pay the cheque amount. After complying with the legal formalities, the complaint was filed by the appellant before the trial court. 3. Before the trial court, PW1 and PW2 were Crl.A No.536 of 2011 -2- examined and Exts.P1 to P12 were marked for the complainant. DW1 was examined and Ext.D1 was marked for the accused. 4. After evaluating the evidence, the trial court found the accused guilty under Section 138 of the N.I.Act and convicted him thereunder and sentenced him to simple imprisonment for six months and to pay a compensation of ₹1,50,000/- to the complainant under Section 357 (3) Cr.P.C. In the appeal filed against the said conviction and sentence, the appellate court set aside the conviction and sentence and acquitted the accused. 5. Heard. 6. The Additional Sessions Court found that the evidence tendered by the accused as DW1 was more probable. Therefore, the court held that the complainant failed to execute Ext.P1 cheque as contemplated under Section 138 of the N.I.Act and accordingly, the accused was acquitted by the appellate court. Crl.A No.536 of 2011 -3- 7. The main reason stated by the appellate court for disbelieving the evidence of PW1 was that the complainant did not mention about the details of the transaction, either in the complaint or in the statutory notice. 8. I have gone through the complaint and I am satisfied that the complaint contained the basic facts necessary to constitute the offence under Section 138 of the N.I.Act. In the affidavit filed in lieu of his examination-in-chief, PW1 stated about the transaction involved in this case. According to PW1, the accused executed Ext.P9 agreement for sale, agreeing to sell his property for a consideration of 3,00,000/-₹ and towards the advance consideration, the accused received ₹1,50,000/-. The sale could not be materialised within the time stipulated in the agreement due to the fault on the part of the accused and therefore, the accused requested for further time. Accordingly, Ext.P12 agreement was executed. Even after the expiry of the period stipulated in Ext.P12 agreement, the accused was not able to perform his part of obligations as Crl.A No.536 of 2011 -4- per Ext.P12. In the said circumstances, the accused issued Ext.P1 cheque to the complainant towards the discharge of the liability due to the complainant from the accused. 9. The accused had a contention that the accused had borrowed an amount of 30,000/- from the complainant and at₹ the time of borrowing the said amount, the accused issued blank signed stamp papers and cheques as security and one of the said cheques was misutilised by the complainant to file the present complaint. 10. The case of the accused is that Exts. P9 and P12 where the documents concocted by the complainant using the blank signed stamp papers collected by the complainant from the accused during the year 2012, when the accused borrowed an amount of 30,000/- from the complainant. The stamp₹ paper forming part of Ext.P9 would show that the said stamp paper was issued on 11.2.2004 by the vendor. The said stamp paper was issued to the vendor from the Treasury on 9.12.2003. Therefore, Ext.P9 could not be a document Crl.A No.536 of 2011 -5- entrusted by the accused during the year 2002, as correctly held by the trial court. The stamp paper forming part of Ext.P12 was issued by the vendor on 21.12.2004. The said stamp paper was issued to the vendor from the Treasury on 17.12.2004. Therefore, there was hardly any possibility for creating Ext.P12 document using the stamp paper entrusted by the accused with the complainant during the year 2002. The above facts would show that the contentions put forward by the accused could not be established by the accused by the yardstick of preponderance of probabilities and possibilities from the materials on record. Even then, merely because the details of the entire transaction, leading to the issuance of Ext.P1 cheque, was not mentioned in the complaint, the appellate court acquitted the accused. The said reason stated by the appellate court in acquitting the accused cannot be said to be a sound and legal reason for acquitting the accused. In this case, the accused admitted that the cheque in question was drawn from the account maintained by him with the bank. Crl.A No.536 of 2011 -6- He also admitted the signature in Ext.P1 cheque. In the said circumstances, in view of the decision of the Apex Court in Vasanthakumar T. v. Vijayakumari [(2015) 2 KLJ 850], the presumption under Section 139 of the N.I.Act is available in favour of the complainant. I have gone through the evidence of PW1 and PW2. I am satisfied that the evidence of PW1 with regard to the execution of Ext.P1 cheque is fully corroborated by the evidence of PW2. The evidence of DW1 is not at all sufficient to rebut the presumption under Section 139 of the N.I.Act. For the above said reason, I am of the view that the appellate court did not appreciate the evidence in the correct perceptive and consequently, the judgment of the appellate court cannot be sustained and consequently, I set aside the same. In the result, this appeal stands allowed, setting aside the judgment in Crl.A.No.95 of 2008 passed by the Additional Sessions Court, Kottayam and restoring the judgment of conviction passed by the trial court in S.T.No.250 of 2006 Crl.A No.536 of 2011 -7- under Section 138 of the N.I.Act. The amount covered by Ext.P1 cheque is 1,50,000/-. Considering the facts and₹ circumstances of the case, the sentence awarded by the trial court can be modified and reduced to imprisonment till the rising of the court and to pay a compensation of Rs.1,50,000/to the complainant under Section 357 (3) of the Code, to meet the ends of justice and accordingly I order so. In default of payment of fine, the accused shall undergo simple imprisonment for three months. **B. SUDHEENDRA KUMAR JUDGE** Scl/06.01.2016