Ullattil Agencies v. K.P. Abootty

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930** **CRL.A.No. 705 of 2001()** **--------------------------------** ## **APPELLANT(S):** **----------------------** **ULLATTIL AGENCIES, REPRESENTED BY ITS PARTNER JACOB THOMAS, ULLATTIL AGENCIES, THOUFEEQUE BUILDING, MARKET, KOTTAYAM.** **BY ADV. SRI.R.RAMADAS** **RESPONDENT(S):** **------------------------** **K.P.ABOOTTY, THAILAKKANDI HOUSE, CHIRAKKARA, THALASSERY -4.** **BY ADV. SRI.B.RAMAN PILLAI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN J** **- - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 705 of 2001** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 26[th] day of November, 2008.** ## **J U D G M E N T** This appeal is at the instance of the complainant in a prosecution for offence under Section 138 of the Negotiable Instruments Act, since he is aggrieved by the judgment passed by the Court below, acquitting the accused under Section 255(1) of Code of Criminal Procedure. 2. The case of the complainant is that the accused borrowed a sum of Rs. 2 lakhs during the month of June 1991 and towards the discharge of the said debt, the accused issued Ext.P1 cheque dated 12.9.1994 for an amount of Rs. 4,29,279.70. According to the complainant, when the cheque was presented in the bank for encashment, the same was returned without encashment due to insufficiency of funds in the account of the accused. Consequently, the complainant claimed that he had sent a notice intimating the accused regarding the dishonour of the cheque and also demanding payment of the amount covered by the cheque and no amount was paid and hence the complainant approached the court below by filing the complaint **Crl. Appeal No. 705 of 2001** -2- which was taken on file as C.C.No. 34 of 1995. When the accused appeared and particulars of the offence were read over and explained to him, he pleaded not guilty. Consequently, the complainant was examined as PW1 and Exts.P1 to P9 were marked on his side. The incriminating circumstances, which brought during the prosecution evidence, were put to the accused under Section 313 of the Code of Criminal Procedure and he denied the same. Further, the case of the accused is that the son of the accused availed a sum of Rs. 25,000/- and a blank cheque was issued to the complainant and the same is misused for the purpose of filing the present complaint. It is also the case of the defence that besides Ext.P1 blank cheque several other blank papers were got signed from the accused and also obtained the title deed. To substantiate the case of the defence, the accused himself was examined as DW1 and also marked Exts.D1 to D6. On the basis of the rival pleadings, two issues were framed by the Chief Judicial Magistrate Court for its consideration and finally found that Ext.P1 cheque is not a document supported by consideration and accordingly, found that the accused was not guilty under Section 138 of the **Crl. Appeal No. 705 of 2001** -3- Negotiable Instruments Act and he was acquitted under Section 255(1) of the Code of Criminal Procedure. It is the above finding and order of acquittal, challenged in this appeal. 3. I have heard the learned counsel appearing for the appellant as well as the respondents/accused. 4. The learned counsel for the appellant submitted that the order of acquittal passed by the court below is without considering the evidence on record and also not considered the fact of the execution of Ext.P1 cheque. The learned counsel pointed out that simply for the reason that there is difference in the hand writing in Ext.P1 cheque and also for the reason that the cheque in question was issued as a security, the court found that there is no execution and held that the complainant failed to establish the case against the accused. The learned counsel pointed out that the cheque in question contained the signature of the accused and therefore Ext.P1 cheque is executed and issued by the accused, and the presumption under Section 139 is available in favour of the complainant. According to the learned counsel, the trial court ignoring the above statutory provision, carried away by the false defence taken by the **Crl. Appeal No. 705 of 2001** -4- accused. Therefore the order of the trial court is liable to be set aside. 5. On the other hand, the learned counsel appearing for the respondents/accused submitted that the simple reasons that the complainant is the holder of the cheque and the cheque contained the signature of the accused are not sufficient to hold that the cheque in question was executed and issued by the accused connected with the transaction alleged by the complainant. According to the learned counsel, the complainant has miserably failed to show passing of consideration connected with Ext.P1 cheque. The learned counsel pointed out that complainant has also admitted the case of the accused with respect to the earlier transaction between the complainant and the son of the accused and the loan availed of by the son of the accused from the complainant. According to the learned counsel, Ext.P1 cheque was issued as a security connected with the said transaction and it is the above cheque which has now misused by the complainant, to file the present case. Thus, according to the learned counsel, the defence had succeeded in establishing a probable case which led to an acquittal since the **Crl. Appeal No. 705 of 2001** -5- same was accepted by the court below and on the basis of the said case the court found that complainant had failed to establish the case against the accused. The learned counsel submitted that no ground is made out by the appellant to interfere with such order of acquittal and therefore the appeal is liable to be dismissed. 6. I have carefully considered the contentions advanced by both the counsel and also perused the records and materials. The Apex court in the decision in **Krishna Janardhan Bhat v. Dattatraya Hegde [2008(1) KLT 425 (SC)]** , had held that Section 139 of the Act merely raises a presumption regarding the second aspect of the matter and existence of a legally recoverable debt is not a matter of presumption under Section 139 of the Act and it merely raised the presumption in favour of the holder of a cheque that the same has been issued for discharge of any debt or other liability. In another decision in **Johnson Scaria v. State of Kerala [2006(4) KLT 290],** this court held that the burden is always on the prosecution to prove the offences against an indictee in all prosecutions and a prosecution under Section 138 of the Negotiable Instruments Act **Crl. Appeal No. 705 of 2001** -6- there is no exception to that general rule. It was also held that execution and issue of the cheque have to be proved to draw the presumption under Section 139 and Section 139 does not shift the burden to prove execution and issue of cheque and admission of the signature in cheque goes a long way to prove due execution. It was also held that possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque and the burden rests on the complainant to prove execution and issue. But under section 114 of the Evidence Act appropriate inferences and presumption can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered. 7. Now let us examine the facts and circumstances involved in this case in the light of the above decisions. The specific case of the complainant is that the accused borrowed a sum of Rs. 2 lakhs from the complainant and towards the discharge of the said debt the accused issued Ext.P1 cheque. Except Ext.P1 cheque, no other document is produced to show the transaction and execution of the cheque. Even according to PW1, the cheque in question was brought after filling the same. **Crl. Appeal No. 705 of 2001** -7- He does not know who executed Ext.P1 cheque. When the complainant was examined he had said that the cheque was issued one week prior to 12.9.1994 and it was given at their institution. But it was not stated in the complaint. Except Exts.P5 there is no other document to show the transaction between the accused and the complainant. Ext.P5 is the only computer print out of the complainant firm which alleged to be the account of the accused. Besides the interested version of PW1 and Ext.P1 cheque, there is no other material to show the transaction. 8. It is in the above factual situation, the case of the defence has to be examined. The complainant has already admitted during his examination that the son of the accused had availed a sum of Rs. 25,000/-. The said Rs.25,000/- was paid to the son of the accused by way of cheque and the amount was not paid in cash. It is the case of the defence that for the purpose of receiving that amount, an account was newly opened in the name of the son of the accused and that cheque was given to the son of the accused, whereas with respect to the present transaction, a substantial huge amount of Rs. 2 lakhs was paid, **Crl. Appeal No. 705 of 2001** -8- alleged to have paid to the accused in cash and not paid by way of cheque and that too without any document. Of course complainant has a case that at the time of realising this two lakhs rupees, the accused deposited the title deed and also issued a promissory note. But it is on record that the said promissory note was returned to the accused when Ext.P1 cheque was given to the complainant. In this juncture the learned counsel for the defence invited my attention to Ext.D2 notice. In D2 notice the amount is shown as Rs. 2,70,000/- as on 24.9.1992. When the complainant was cross examined with regard to the issuance of Ext.D2 even after the promissory note was returned, he gave a lame excuse and stated that it was issued by mistake. 9. In paragraph 12 of the impugned judgment the trial court observed after perusing Ext.P1 that signature in the cheque is much older than the other writings in the cheque leaf itself. According to the court, the signature was put by using ink pen while the date, the name of the payee and the amount was written using ball point pen. It was also observed that there can be no doubt that the signature in the cheque was of much prior **Crl. Appeal No. 705 of 2001** -9- period than the other writings. In paragraph 14 of the judgment the trial court had observed that the case of the complainant is that at the time of the transaction, promissory note was executed and apart from that the title deed of the property of the wife of the accused was also handed over. But it is stated that, according to the accused, title deed was obtained when the amount of Rs.25,000/- was advanced. The court observed that if there was already a promissory note for Rs. 2 lakhs and that was advanced to the accused in 1991, there was no necessity for complainant to get another promissory note from the accused in 1992 as stated in Ext.D2. Thus, on the basis of the analysis of the materials on record, the trial court found that all these aspects were the fabrication that could have been made by PW1complainant. It was also observed by the trial court that apparently, the promissory note was even now with the complainant, as seen from Ext.D2 and even assuming that such a promissory note was executed on 24.9.1992, it was not at all possible that accused would have executed a cheque in respect of the same amount in 1994 and also found that if promissory note and cheque in the name of the accused and his son were **Crl. Appeal No. 705 of 2001** -10- available to the complainant freely, this should be the result of the fabrication out of the papers that were obtained as security from them. In paragraph 16 the trial court found that the PW1 admitted that if amount above Rs.10,000/- was being advanced by a financial institution, it should be by cheque or draft. But, in the present case, an amount of Rs.2 lakhs was given to the accused in cash. But the explanation of PW1 is, that was on the basis of the request made by the accused. But in the case of the loan amount of Rs. 25,000/- that was given by way of cheque. The complainant is a firm involved in the money lending business and there is no evidence to show the payment of Rs.2 lakhs and this observation of the trial court appears to be correct. After considering the evidence on merits, the trial court also found that it is apparent that the account before 1992 were available with the complainant and the case of the complaint that the same were not available could not be accepted. Thus after the elaborate consideration of the entire case of the evidence on record, the trial court found that there was no possibility that Ext.P1 cheque was supported by consideration. Trial court also found that enough circumstances were brought out on behalf of **Crl. Appeal No. 705 of 2001** -11- the accused to rebut the presumption against the complainant that the cheque was not supported by consideration. The Apex court in the decision in **Ghurey Lal v. State of U.P. reported in [2008 (4) KLT SN 17 (Case No. 17) (SC)]** had laid out seven circumstances under which the appellate court can interfere with an order of acquittal passed by the trial court. In the said decision, the Apex court has held that appellate court can interfere only when there is substantial and compelling reasons. In the present case, I find that no such compelling on substantial reasons to interfere with the order of acquittal passed by the court below. Consequently the appeal fails. In the result appeal is devoid of merit and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** rhs