V.P. Shaji v. C.M. George & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 CRL.A.No. 2266 of 2007() -----------------------CRA.416/2006 of ADDL.SESSIONS COURT, (ADHOC),-I, ERNAKULAM C.C.NO.1547/2003 OF JFCM-I, KOCHI. .................... APPELLANT(S): RESPONDENT ------------------------ V.P.SHAJI, S/O V.V.PAILY, VALADIYIL, EDAYAR P.O., KOOTHATTUKULAM. BY ADV. SRI.P.P.JACOB RESPONDENT(S): APPELLANT ------------------------ 1. C.M.GEORGE, CHERUMOOZHIKKAL HOUSE, NEAR CATHOLIC CHURCH, PIRAVOM P.O., ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. - R2 PUBLIC PROSECUTOR SMT, K.L.LAKSHMI RANI. SRI.M.G.KARTHIKEYAN FOR R1 SRI.NIREESH MATHEW FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.A. No.2266 of 2007 ---------------------------------------------Dated, 13[th] November, 2008. ## JUDGMENT This appeal is at the instance of the complainant, in a prosecution for the offence under section 138 of the Negotiable Instruments Act, who, though succeeded in the trial court, failed in the lower appellate court. 2. After trial, the learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for two months and ordered to pay a compensation of Rs. 1,00,000/- and in default to pay compensation, he is directed to undergo simple imprisonment for a further period of two months under section 357(3) Cr.P.C. Aggrieved by the order of conviction and sentence, the accused preferred Crl.A.No.416/2006 before the court of Addl.Sessions Judge (Adhoc-I), Ernakulam. The learned Addl.Sessions Judge by his judgment dated 23.4.2007 set aside the judgment of the trial court and acquitted the accused. Aggrieved by the order of acquittal, the complainant preferred this appeal. Crl.A.2266/07 ## **-:2:-** 3. The case of the appellant/complainant is that the complainant accused were known each other and the accused issued a cheque for Rs.1,00,000/- (one lakh) towards the discharge of his liability due to the complainant and when the cheque was presented for encashment, the same was dishonoured for the reason of insufficient funds in the account of the accused. According to the complainant, thereafter he caused to issue notice intimating the dishonour of the cheque and requesting the accused to pay the amount covered by the dishonoured cheque. Thereafter, despite the notice, the accused failed to repay the amount and hence, the complainant approached the court below by filing the complaint under section 138 of the N.I.Act. After recording the sworn statement in the Chief Judicial Magistrate court, S.T.No.81/2003 was instituted. Thereafter, the case was made over to the court of Judicial First Class Magistrate.1, Kochi, where the case was renumbered as C.C.No.1547/2003. On appearance of the accused, particulars of the allegations in the complaint were read over and explained to him and he Crl.A.2266/07 ## **-:3:-** pleaded not guilty which resulted in the further trial during which the complainant himself was examined as PW1 and marked Exts.P1 to P5 as documentary evidence. When the accused was questioned under section 313 Cr.P.C., he denied the incriminating circumstances came out through the prosecution evidence and he denied the transaction between the complainant and the accused. According to him, the cheque in question was entrusted with one V.J.Jose with whom he had financial transaction and the cheque was given to him as security when he availed a sum of Rs.1,00,000/-. During the time of defence evidence, the accused himself was examined as DW1 and one more witness was examined from his side. Exts. D1 to D9 were marked as defence exhibits. Based upon the rival contentions and the pleadings, the trial court formulated four issues for its consideration. Finally, the trial court found that the complainant succeeded in establishing the case against the accused and accordingly, the accused has been convicted under section 138 of the Act and imposed the sentence mentioned above. It is to be noted that the sentence Crl.A.2266/07 ## **-:4:-** awarded is only simple imprisonment for two months. But the accused was directed to pay a compensation to the complainant a sum of Rs.1,00,000/-, an amount equal to the amount covered by the cheque in question. It is the above order of conviction and sentence challenged by the accused before the Sessions Court, Ernakulam by filing Crl.A.No. 416/2006. By the impugned judgment, the lower appellate court set aside the trial court judgment and accordingly, the accused was acquitted. It is the above order of acquittal challenged by the complainant by filing the present appeal. 4. I have heard the learned counsel Sri P.P.Jacob appearing for the appellant and also Sri C.C.Thomas, counsel for the respondent/accused. I have also perused the evidence and materials on record. 5. The learned counsel for the appellant submitted that without assigning a proper and valid reason, the lower appellate court interfered with the order of conviction passed by the trial court. The learned counsel submitted that the grounds considered by the lower appellate court to acquit the Crl.A.2266/07 ## **-:5:-** accused is not at all relevant and the same are not legally sustainable. On the strength of the decision of this Court reported in **Johnson Scaria v. State of Kerala** (2006 (4) KLT 290), the learned counsel for the appellant submitted that the complainant has established the execution of the cheque and the liability due to the complainant from the accused and therefore, the complainant is entitled to get the benefit of the statutory presumption provided under section 139 of the Act. It is also the case of the counsel that though the accused tried to make out a case to rebut the presumption, but the same did not materialise and therefore, the order of the lower appellate court is liable to be set aside. 6. Per contra, the learned counsel for the respondent/accused submitted that the accused in this case succeeded in establishing a probable case by using the materials of the prosecution and also by adducing other evidence, both documentary as well as oral evidence. The learned counsel invited my attention through the documents namely Exts.D1 to D9. It is pointed out that from the Crl.A.2266/07 ## **-:6:-** beginning itself, the case of the defence is to the effect that the cheque in question was not issued by the accused to the complainant and he did not execute the cheque in favour of the complainant and there was no transaction between himself and the accused. The counsel pointed out that the specific case of the defence is to the effect that the cheque in question was entrusted with one V.J.Jose as security when the accused availed a sum of Rupees one lakh from the said person who was having business of lending money for interest. According to the learned counsel, the said facts are supported by documentary evidence such as Exts.D1 to D9. It is also pointed out by the learned counsel that the complainant has miserably failed to make out a case beyond reasonable doubt. It is pointed out by the learned counsel that no details are given either in Ext.P4 notice or in the complaint regarding the transaction. After inviting my attention to the proof affidavit of the complainant, the learned counsel submitted that in the affidavit also no details are given about the circumstances under which the cheque in question was Crl.A.2266/07 ## **-:7:-** issued. It is pointed out that the case of the selling of Pongalliam tree etc. was first time mentioned only when the complainant was cross examined. It is also pointed out that in Ext.P1 cheque, the endorsement therein are in two different inks which would show the falsity of the case put forward by the complainant. It is also pointed out by the counsel that the lower appellate court after considering the entire facts and circumstance by assigning cogent reasons came to the conclusion that the accused was not guilty and accordingly, he was acquitted. In such a circumstance, it is not justifiable for this court to interfere with such order of acquittal by exercising the appellate jurisdiction of this Court. 7. I have carefully considered the contentions advanced by the learned counsels appearing for both sides and also perused the records. The specific case of the complainant which can be gathered from the materials and evidence on records is to the effect that he had sold out certain Pongalliam trees to the accused for a total price of Rs.1,10,000/- and out of that amount, at the time of purchase of the trees, only Crl.A.2266/07 ## **-:8:-** Rs.10,000/- was paid and for the remaining amount, the accused issued Ext.P1 cheque dated 6.1.2003. It is also the case of the complainant that the cheque in question was handed over to the complainant in his house. The above averments are controverted by the accused showing that there is no transaction between himself and the complainant and the cheque in question was entrusted with one V.J.Jose connected with another transaction. This Court in the decision in **Johnson Scaria v. State of Kerala** (cited supra), has held that “the burden is always on the prosecution to prove the offence against the indictee in all prosecutions and a prosecution under section 138 of the N.I.Act is no exception to that general rule. Execution and issue of the cheque have to be proved to draw the presumption under S.139 and S.139 does not shift the burden to prove execution and issue of the cheque. Admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes a long way to prove issue of Crl.A.2266/07 ## **-:9:-** the cheque. The burden rests on the complainant to prove execution and issue. But under S.114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered.” In the present case,going by the evidence of the complainant and supported by Ext.P1 cheque and also Ext.P4 notice it can be seen that the case of the complainant is that the accused issued the cheque in favour of him out of the transaction entered into between them mentioned above. As pointed out by the learned counsel for the respondent/accused, no details are given in the complaint regrading the said transaction. However, the complainant is the holder of Ext.P1 cheque duly signed by the accused and the amount therein is also, even according to the respondent/accused, endorsed by himself. Therefore, I am of the view that the question whether the accused had succeeded in discharging his burden to rebut the presumption under section 139 of the Act has to be examined in detail. Crl.A.2266/07 ## **-:10:-** 8. Going by the judgment of the lower appellate court, it appears that apart from citing some decisions, no detailed enquiry is seen to have been conducted by the lower appellate court. The Apex Court in the decision in **Krishna Janardhan Bhat v. Dattatraya Hegde** (2008 (1) KLT 425 (SC), and in **Narayana Menon v. State of Kerala** (2006(3) KLT 404), has held that the accused is only to discharge the initial onus of proof. He is not required to disprove the prosecution case and whether the initial burden has been discharged or not is a question of fact. In the present case, the specific case taken by the defence is to the effect that Ext.P1 cheque was entrusted with one V.J. Jose, as security when the accused availed a sum of Rs.one lakh from him, and it is the above cheqe misused by the complainant and filed the present complaint at the instance of the said Jose. The learned counsel for the respondent submitted that the complainant is only a benami of the said person and there is no transaction between the accused and the complainant. In support of the above contention, the learned counsel pointed out on the basis Crl.A.2266/07 ## **-:11:-** of Ext.D4 ledger extract that the accused had already drawn a draft for an amount of Rs.50,000/- in favour of the said Jose but he refused to receive the same and thereafter the accused paid Rs.50,000/- by two equal instalments which will be evidenced by Exts.D2 and D3. To substantiate the above contention, the learned counsel invited by attention to Exts.D1 to D3. Ext.D1 to D3 are only carbon copies of certain letters which are not sufficient to show that either the same were served on the addressee at that time itself or Ext.P1 cheque was entrusted with the said Jose. Even though the accused obtained a draft for Rs.50,000/-, from the bank and though it was subsequently cancelled, the same are not sufficient to show that those transactions were connected with the cheque in question. Admittedly, the accused was having frequent transactions with the said Jose and merely for that reason, it cannot be presumed that all those transactions were towards the repayment of the amount connected with the transaction for which Ext.P1 cheque was given by the accused. In this juncture it is relevant to note that none of the Crl.A.2266/07 ## **-:12:-** documents produced by the accused are sufficient to show that Ext.P1 cheque was entrusted with the said Jose by the accused. It is also relevant to note that neither the said Jose nor Arul through whom the payments were alleged to have been effected by the accused were examined during the trial. This court in the decision in 2006 (4) KLT 290 (cited supra) has categorically stated that “presumption is one of law. The accused must prove the contrary. He must prove the contrary to satisfy the definition of the expression “proved” in S.3 of the Evidence Act. Throwing up many possibilities is not sufficient. He must prove the contrary to the satisfaction of a prudent mind. Of course, the higher standard of proof beyond reasonable doubt will not be insisted from him. His burden is akin to that of a litigant in a civil case. Not any fanciful possibility but a practical probability which the court is able to accept as true adopting the standards of a prudent man, will have to be established by the accused to succeed in his attempt to rebut the presumption”. On an examination of Crl.A.2266/07 ## **-:13:-** the evidence involved in the case on hand in the light of the above yardstick, it cannot be said that apart from the mere suggestion that Ext.P1 cheque was entrusted with the said Jose, there is no convincing evidence to substantiate such fact. Exts. D1 to D3 are not sufficient to show that Ext.P1 was entrusted with the said Jose. Ext.D4 ledger is also not sufficient to show that Ext.P1 cheque was entrusted with the said Jose. in this juncture it is relevant to note that even according to the accused, the account was settled with the said Jose much earlier but absolutely, there is no materials to show that the accused had taken any step to get back Ext.P1 cheque, if actually the same was entrusted with the said Jose. During the trial, no material was produced. It is also relevant to note that as indicated above, neither the said Jose nor Arul - clerk of the accused, was examined to prove the so called transaction. In the absence of such vital material evidence, it cannot be said that especially on the basis of Exts.D1 to D9, it cannot be said that the accused had discharged his burden to rebut the presumption. Crl.A.2266/07 ## **-:14:-** 9. It is equally important to note that though the complainant is the holder of Ext.P1 cheque, he had stated about the transaction only when certain questions put to him when he was cross examined. Even though he had stated that there were two previous transactions of selling of Pongalliam trees to the accused, no evidence was adduced to that effect. So considering the totality of the facts and circumstances of the case, I am of the view that both the parties can be given one more opportunity to substantiate their respective contentions and based upon such fresh materials that may be adduced by the parties, the trial court can take a fresh decision for which the judgments of both the courts below are to be set aside. 10. In the result, the appeal is allowed. The judgment dated 23.4.2007 of the Addl.Sessions Judge(Adhoc-1), Ernakulam and the judgment of the trial court dated 28.4.2006 in C.C.1547/2003 are set aside and the matter is remitted back to the trial court for fresh consideration. The parties are free to adduce further evidence, if they so advised, to Crl.A.2266/07 ## **-:15:-** substantiate their respective contentions. The parties are directed to appear before the court below either in person or through counsel, on 10.12.2008, on which date the court is directed to take the complaint on file and proceed with the same and dispose of it on merit. Since the case is pertained to the year 2003, the trial court is directed to dispose of the same within 4 months from the date fixed for the appearance of the parties, i.e. on 10.12.2008. ## **V.K.MOHANAN, JUDGE** kvm/- ## Crl.A.2266/07 **-:16:-**