Yahiya S/o Pareedkunju v. State of Kerala & M/s V.A. Kurien & Company

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` TUESDAY,THE9[TH]DAYOFJANUARY2024/19THPOUSHA,1945 CRL.REV.PETNO.1382OF2008 ``` ## **`CC 163/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III(MOBILE), ERNAKULAM CRA 526/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` YAHIYAP,S/O.PAREEDKUNJU, MANALATHUVAYALILVEEDU,VADAKKEVILA KOLLAM,(ASPERCOMPLAINT)RESIDINGAT OLIKKARAVAYALIL,THATTAMALA,MAYYANADU VILLAGE,(FROMMANAKKATTUVAYALILPUTHEN VEEDU,KOLLOORVILA,VADAKKEVILA,KOLLAM) ``` ``` BYADVSRI.G.BHAGAVATSINGH ``` ## **`RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM.` - `2 M/S.V.A.KURIEN & COMPANY, BROADWAY, ERNAKULAM, REP.BY ITS PARTNER P.A.JOSE.` ``` BYADVS.SRI. K.M.SANAL ANUPTPAUL ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITGEORGE,SENIOR PUBLICPROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARDON 18.12.2023,THECOURTON09.01.2024DELIVEREDTHEFOLLOWING: ``` Crl.R.P No.1382 of 2008 2 ## **“C.R”** ## **O R D E R** This revision is at the instance of the accused in CC No.163 of 2003 on the file of Judicial First Class Magistrate Court-III (Mobile Court), Ernakulam, assailing the judgment in Crl.Appeal No.526 of 2007 on the file of Additional Sessions Judge (Adhoc-II), Ernakulam, which upheld his conviction and sentence under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the N.I Act’). 2. CC No.163 of 2003 arose out of a complaint filed by the 2[nd] respondent/complainant against the revision petitioner under Section 138 of the N.I Act. The allegation in the complaint was that, the complainant/2[nd] respondent, a partnership firm engaged in the wholesale business of readymade garments at Ernakulam, supplied readymade items to the revision petitioner who was running a shop by name M/s.Arafa Tex at Kollam. Towards the cost of readymade garments purchased by the revision petitioner from the complainant/2[nd] respondent, he issued cheque No.13859 dated 10.10.1998 drawn on Federal Bank Limited, Umainalloor branch for an amount of Rs.42,639/-. When the complainant presented that cheque for encashment, it was returned unpaid for the reason ‘exceeds arrangement’. The complainant/2[nd] respondent issued registered Crl.R.P No.1382 of 2008 3 notice to the revision petitioner in his residential address as well as in the address where he was working as a Musaliyar. Those notices returned with the endorsement ‘addressee left without instructions’. Since the amount was not paid, the complainant/2[nd] respondent preferred the complaint under Section 138 of N.I Act. 3. Learned Magistrate took cognizance of the offence under Section 138 of the N.I Act and issued summons to the revision petitioner. On appearance before court, substance of accusation was read over to the revision petitioner to which he pleaded not guilty. Thereupon, PWs 1 and 2 were examined and Exts.P1 to P10 were marked from the side of the complainant. On closure of the evidence of the complainant, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and DWs 1 to 6 were examined and Exts.D1 to D12 were marked from defence side. 4. On an anxious consideration of the rival contentions and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Section 138 of the N.I Act, and he was convicted and sentenced to undergo simple imprisonment for three months and compensation of Rs.43,000/- with a default sentence of simple imprisonment for three months. Crl.R.P No.1382 of 2008 4 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.526 of 2007. The appellate court, on reappreciation of the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and so the appeal was dismissed, against which he has preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the courts below, convicting and sentencing the revision petitioner under Section 138 of the N.I Act. 7. Heard learned counsel for the revision petitioner and learned counsel for the 2[nd] respondent/complainant. 8. The revision petitioner is assailing the conviction and sentence mainly on three grounds. The first ground is that, there was no proper service of the statutory notice under Section 138(b) of the N.I Act. The second ground is that, there was material alteration in Ext.P2 cheque regarding the date. The third ground is that, there was discharge of the debt due under Ext.P2 cheque, and so the complaint under Section 138 of the N.I Act will not lie against him. 9. Let us examine these grounds one after another. The first ground urged by the revision petitioner is that, there Crl.R.P No.1382 of 2008 5 was no proper notice under Section 138(b) of the N.I Act so as to constitute an offence punishable under Section 138 of N.I Act. PW1, who is the partner of the complainant firm, deposed that, since the revision petitioner closed down his business concern by name Arafa Tex, on dishonour of the cheque, he sent registered notice to the revision petitioner in his residential address, as well as in the address of the Juma-ath where he was working as a Musaliyar. Both the notices returned with the endorsement ‘addressee left without instructions’. But, the revision petitioner would submit that, the notices were not sent in his correct address. Exts.P7 and P8 are the notices sent by the 2[nd] respondent/complainant, which were returned with the endorsement ‘addressee left without instructions’. In Ext.P7 notice, the revision petitioner was shown as Musaliyar of Elamballur Juma-ath, Kundara P.O, Kollam. The revision petitioner would say that, he never worked as a Musaliyar in Elamballur Juma-ath and the address shown in Ext.P7 was not correct. DW5 the Secretary of Elamballur Juma Masjid was examined to say that the revision petitioner never worked there as a Musaliyar. Moreover, no documents were there to show that the revision petitioner worked in that Juma-ath as a Musaliyar. So, it cannot be said that Ext.P7 was sent in the address of the revision petitioner where he was working as a Musaliyar. Crl.R.P No.1382 of 2008 6 10. Now coming to Ext.P8 notice, the address of the revision petitioner was shown as Sri.Yahiya.P, S/o.Sri.Pareed Kunju, Manalathu vayalil veedu, Vadakkevila P.O, Kollam district. The revision petitioner would say that, his house name was Manakattu Vayalil Puthen Veedu and so, Ext.P8 notice was not sent in his correct address, and therefore, it cannot be said that there was compliance of Section 138(b) of the N.I Act. PW1 is relying on Ext.P10 voters list and the testimony of PW2-the Junior Superintendent of Taluk Office through whom Ext.P10 was proved, to show the address of the revision petitioner as Yahiya S/o.Pareed Kunju, Manakattu vayalil Puthen, with house No.505A. The revision petitioner is relying on Ext.D11 passport in which his house name is shown as Manakkattuvayalil Puthen Veedu. Ext.D12 copy of ration card shows his house name as Manakattuvayalil. So he would say that, his house name shown in Ext.P8 notice was not correct. But, in the vakalath filed by him before the trial court, his house name is shown as Manalathuvalayil, and it is neither Manakattu Vayalil Puthen Veedu nor Manakattu Vayalil. As we have seen, in Ext.P10 voters list, his house name is Manakattu Vayalil Puthen. So, there is little little difference in all these documents, with respect to his house name. 11. DW6 is the postwoman who took Ext.P8 notice to the house Crl.R.P No.1382 of 2008 7 of the revision petitioner for delivery. She would admit that, there was little mistake in the house name mentioned in Ext.P8 notice, as it was written as Manalathu Vayalil instead of Manakattu Vayalil. But, she would say that, since she was serving postal articles in that area, she knew that house, and she in fact read the house name as Manakattu Vayalil, instead of Manalathu Vayalil. So, she took that cover to the house of the revision petitioner, as that house was familiar to her. Moreover, the revision petitioner was the son of Pareed Kunju. Ext.P10 voters list will not show any other Yahiya as son of Pareed Kunju in Manakattu Vayalil Puthen house. The purpose of address is to identify a person, and if the postwoman could identify that person, even though there was a little spelling mistake in the house name, we cannot say that, the address shown was not correct. The revision petitioner was not available in that house and he had left the house without instructions. So, even if in Ext.P8, the house name was shown as Manakattu Vayalil, the endorsement would have been the same. The revision petitioner has no case that, there is another Yahiya, S/o.Pareed Kunju residing at Manalathu Vayalil house, so as to say that the notice was not taken to the correct addressee. Moreover, he has no case that during that period, he was available in Manakattuvayalil house, and so the notice could have been served on Crl.R.P No.1382 of 2008 8 him if it was sent in his correct address. Since DW6 could identify the addressee from the address shown in Ext.P8 cover, it could be said that the notice was sent in an address by which the addressee could very well be identified. In the house name, the difference is, instead of using ‘k’, ‘l’ was used and that is why the house name was written as Manalathu Vayalil instead of Manakattu Vayalil. There is no dispute for the revision petitioner, as to the dishonour of the cheque or sending of the notice within the statutory period. His only dispute is with respect to the spelling mistake in the house name. As we have already seen, even if the spelling was mistakenly used by using ‘l’ instead of ‘k’, then also, DW6 the postwoman could identify the addressee. The endorsement that the ‘addressee left without instructions’ also is not in dispute. According to the revision petitioner, after closing down his business in April, 1998, he left for Ajmer in that month itself, and he came back only in the year 2002. So, the endorsement in Ext.P8 notice made by DW6 the postwoman also is correct. The 2[nd] respondent/complainant sent the notice within the statutory period as proved by Ext.P6 postal receipt. The spelling mistake in the house name is not material to say that, no notice was sent in the correct address of the revision petitioner, because the postwoman was able to identify the address of the revision petitioner, even with that mistake. Crl.R.P No.1382 of 2008 9 So, the contention of the revision petitioner that no notice was sent to him in his correct address, is liable to be rejected. 12. The second contention of the revision petitioner is that, there was material alteration in Ext.P2 cheque. According to him, Ext.P2 cheque was given in the year 1997, more specifically on 10.10.1997, but the year of that cheque was corrected as 1998, and the complainant presented it before Bank. The definite case of the revision petitioner is that, the year 1997 was corrected as 1998. But, Ext.P2 cheque will not show any such correction. So, the case of material alteration of Ext.P2 cheque could not be proved by him. 13. The third ground urged by the revision petitioner is that, there was discharge of the liability under Ext.P2 cheque, and no amount was actually due to the 2[nd] respondent/complainant and so, the prosecution under Section 138 of N.I Act will not lie. Going by the complaint, the case of the complainant was that, the complainant supplied readymade garments to the revision petitioner, during the course of regular business, and for fully discharging the liabilities which the revision petitioner owed towards the complainant, he issued Ext.P2 cheque dated 10.10.1998. It is not stated that, towards the purchase of readymade garments under a particular bill, Ext.P2 cheque was issued. From the complaint, what could be gathered is Crl.R.P No.1382 of 2008 10 that, during the course of business, some amounts became due and for clearing the entire liabilities, Ext.P2 cheque was issued. 14. In 313 questioning, the definite case of the revision petitioner was that, his staff, in his absence, purchased readymade garments supplied by the sales representative of the 2[nd] respondent/ complainant, and as requested, his staff gave Ext.P2 cheque, which was signed by the revision petitioner. Thereafter, three cheques were given to the 2[nd] respondent/complainant, each for Rs.10,000/- and the complainant received that amount. Two cheques were of Federal Bank and one cheque was of SBT. For the balance amount, Rs.11,500/- was given in cash in various instalments, and since he closed down his business, remaining readymade garments were returned to the 2[nd] respondent/complainant, and the balance amount was adjusted with the garments returned. Since the 2[nd] respondent/complainant was not satisfied with the amount received, misusing the earlier cheque, he filed a false complaint against him. 15. True that, the revision petitioner is not disputing the signature or the amount written in Ext.P2 cheque. His case is that, he purchased readymade garments from the 2[nd] respondent/complainant on 22.08.1997 for an amount of Rs.42,639/-, for which his staff issued Ext.P2 cheque as a security, but subsequently three cheques, each for Crl.R.P No.1382 of 2008 11 Rs.10,000/- were issued to the 2[nd] respondent/complainant and the balance amount was paid in instalments, and also by adjusting the amount towards the price of the readymade garments returned to the complainant when the revision petitioner closed down his business. PW1 has not stated in the complaint that, for the purchase of readymade garments on 22.08.1997, Ext.P2 cheque was issued. But when the revision petitioner produced Ext.D1 bill dated 22.08.1997, PW1 admitted that, Ext.P2 cheque was issued for the amount covered by Ext.D1 bill. He further admitted that, the amount covered by Ext.D1 bill and the amount mentioned in Ext.P2 cheque are one and the same. PW1 was categoric in his statement that, after 22.08.1997, there was no transaction between the complainant and the revision petitioner. If so, the last transaction between the complainant and the revision petitioner might have been the transaction as per Ext.D1 bill dated 22.08.1997. PW1 has no case that, any amount was due to the complainant for the earlier purchases made by the revision petitioner i.e purchases prior to 22.08.1997. PW1 further stated that no payment was made by the revision petitioner to the complainant after 22.08.1997. So, according to PW1, for discharging the liability covered by Ext.D1 bill amount, Ext.P2 cheque was given. There is nothing to show that any other dues were pending between them as Crl.R.P No.1382 of 2008 12 on 22.08.1997. When PW1 contended that there was no payment made by the revision petitioner after Ext.D1 bill, he was confronted with Ext.D2 bill issued by the complainant to Arafa Textiles of the revision petitioner on 26.03.1998. PW1 admitted payment of Rs.1,000/from the revision petitioner, as per Ext.D1 document. Moreover, the revision petitioner examined DW1 to show that, after Ext.D1 bill, two cheques were given by him to the complainant for Rs.10,000/each and those cheques were encashed by the complainant on 14.10.1997 and 22.11.1997 respectively. The revision petitioner has got another case that he had paid Rs.10,000/- more to the complainant by way of a cheque drawn on SBT, Mayyanad branch, though he did not produce any bank documents to prove that fact. Testimony of DW1, the Bank Manager of Umayanalloor branch of Federal Bank Limited coupled with Ext.D6 statement of account of M/s.Arafa Tex will show that, on 14.10.1997 and 22.11.1997, there was encashment of two cheques for Rs.10,000/each, by the complainant from the account of the revision petitioner. If so, the case of PW1 that there was no payment from the revision petitioner after Ext.D1 bill is not correct. 16. DW1 would say that cheque No.13857 and 13858 drawn from the account of the revision petitioner were encashed on Crl.R.P No.1382 of 2008 13 20.08.1997 and 21.08.1997 respectively, and cheque No.13859 drawn from the very same account was encashed on 01.09.1997. Ext.P2 cheque is bearing No.13859. So, according to the revision petitioner, it will substantiate his case that, Ext.P2 cheque which was serially coming in between cheque Nos.13858 and 13860, was also issued in the year 1997 itself, as a security for payment of the amount covered by Ext.D1 bill. He repaid that amount by way of three cheques of Rs.10,000 each, two cheques drawn on Federal Bank and one cheque drawn on SBT, Mayyanad branch. Ext.D6 document clearly shows that, after Ext.D1 bill, the complainant had received Rs.10,000/- each by way of two cheques, one on 14.10.1997 and the other on 22.11.1997. So, it probabilises the case of the revision petitioner that, he discharged the debt covered by Ext.D1 bill by making subsequent payments, and the final payment according to him was adjusted by returning the readymade garments, while closing down his business. DW2 who was a salesman in Arafa Tex of the revision petitioner fully supported the case put forward by the revision petitioner. He would say that after making repayment, the complainant had agreed to return the cheque received at the time of Ext.D1 purchase, but it was not returned. 17. Though the case of PW1 was that after Ext.D1 bill, there was Crl.R.P No.1382 of 2008 14 no payment from the part of the revision petitioner, he was not denying Ext.D6 account statement, which shows that two cheques were encashed by the complainant for Rs.10,000/- each after Ext.D1 bill. When he was confronted with the three payments made to the complainant after Ext.D1 bill by way of cheques, he was conveniently pleading ignorance. He would say that he has to verify the ledger to see whether any cheques were issued by the revision petitioner after Ext.D1 bill. PW1 categorically admitted that, for each customer, independent ledger account is kept by the complainant, and going through that ledger, one could see the credit as well as the balance. But, that material document was conveniently suppressed by the complainant. In fact, if Ext.P2 cheque was issued towards discharge of the amount covered by Ext.D1 bill, the complainant himself could have produced that bill to show the original transaction and to show that Ext.P2 cheque was issued towards discharge of that debt. But, it was the revision petitioner, who produced that document before court, and when PW1 was confronted with that document, he admitted that Ext.P2 cheque was issued for the amount shown in Ext.D1 bill. Though PW1 deposed that, after Ext.D1 bill, there was no transaction at all between the complainant and the revision petitioner, during cross examination, he was saying that, there was another transaction with Crl.R.P No.1382 of 2008 15 him in August 1998, but no evidence is forthcoming. Moreover, PW1 stated that the last transaction between the complainant and the revision petitioner was on 10.10.1998. There is no such case for him even in the complaint. PW1 would further say that, he came to know that the revision petitioner closed down his shop, on 10.10.1998. The date seen in the cheque also is 10.10.1998. So, it probabilises the case of the revision petitioner that, Ext.P2 cheque was given as security at the time of Ext.D1 purchase, and subsequently he paid amounts to the complainant by way of cheques as proved by Ext.D6 document and by cash payment as proved by Ext.D2 document, and by returning the readymade garments, while closing down his shop. It seems that as the complainant was not satisfied with the amount received, he presented Ext.P2 cheque before the Bank, putting the date on which, he came to know about the closure of the shop of the revision petitioner, as if no repayment was received for the amount covered by that cheque. As the revision petitioner closed down his shop and left for Ajmer in April, 1997 itself, as stated by DW2, there was no chance for him to issue Ext.P2 cheque on 10.10.1998. Ext.D6 document coupled with the testimony of DW1, probabilises the case of the revision petitioner that, Ext.P2 cheque was given by the revision petitioner to the complainant, on the date of Ext.D1 bill in the year Crl.R.P No.1382 of 2008 16 1997, and it was not issued in the year 1998 as alleged by PW1. Moreover, the case of PW1 that there was no payment made by the revision petitioner after Ext.D1 transaction is falsified by Ext.D2 receipt and D6 bank statement, which shows encashment of two cheques issued by the revision petitioner, to the complainant on 14.10.1997 and 22.11.1997 respectively. So, the revision petitioner succeeded in proving his case by preponderance of probabilities, and also by relying on the admissions made by PW1. When the revision petitioner is able to pick holes in the case of the complainant even by preponderance of probabilities, and by relying on the evidence of the complainant himself, the presumption under Sections 118 and 139 of the N.I Act will disappear, and then it will be the burden of the complainant to prove his case without the aid of the presumptions. 18. Learned counsel for the revision petitioner relied on the decision **Narayana Menon v. State of Kerala [2006 (3) KLT 404 (SC)]** , in which the Apex Court held that the accused is only to discharge initial onus of proof. He is not required to disprove the prosecution case. Whether the initial burden has been discharged is a question of fact. Then the burden shifts and the presumption disappears. Crl.R.P No.1382 of 2008 17 ## 19. Paragraphs 32, 35, 39 and 42 of _Narayana Menon’s case_ cited supra read thus: 32. Applying the said definitions of ‘proved’ or ‘disproved’ to principle behind S.118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 35. The standard of proof evidently is pre-ponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 39. It was for the Appellant only to discharge initial onus of proof. He was not necessarily required to disprove the prosecution case. Whether in the given facts and circumstances of a case, the initial burden has been discharged by an accused would be a question of fact. It was matter relating to appreciation of evidence. The High Court in its impugned judgment did not point out any error on the part of the appellate court in that behalf. 42. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a ‘fortiori’ even an accused need not enter into the witness box and examine other witnesses in support of his Crl.R.P No.1382 of 2008 18 defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court”. 20. In the case on hand, the evidence of PW1 himself was sufficient to rebut the presumptions available under Sections 118 and 139 of the N.I Act. Though PW1 was pleading ignorance regarding payment of any amount after Ext.D1 transaction, Ext.D6 statement of account and Ext.D2 document coupled with the testimony of DW1 are sufficient to show that, after Ext.D1 transaction, the complainant had received amounts from the revision petitioner by way of cheques and receipt. The ledger account with respect to the revision petitioner, which is a material document as admitted by PW1, which will show the entire transaction, credit, balance etc. of that customer, was conveniently suppressed by the complainant. Even according to PW1, the last transaction between the complainant and the revision petitioner was on 22.08.1997 as per Ext.D1 bill. As already stated, he has no case that any amounts were due to the complainant from the revision petitioner on account of any previous transactions. So, in all probability, the payments made by the revision petitioner after Ext.D1 bill, were towards repayment of the amount covered by Ext.P2 cheque. The most interesting aspect is that, PW1 came to know about the Crl.R.P No.1382 of 2008 19 closure of the shop of the revision petitioner on 10.10.1998 as admitted by him before court. The date of Ext.P2 cheque also is the same, i.e., 10.10.1998. The testimony of DW1 and Ext.D6 document clearly shows that, the cheques immediately prior to, and subsequent to, Ext.P2 cheque were presented before the bank in the year 1997 itself. That also probabilises the case of the revision petitioner that Ext.P2 cheque was given to the complainant, when he purchased readymade garments from him on 22.08.1997, as per Ext.D1 bills. There might have been some disputes regarding the balance due, even after taking back the unsold readymade garments, and so immediately on knowing about the closure of his shop, the complainant might have presented the cheque before the bank. So, the revision petitioner succeeded in proving that, though Ext.P2 cheque was given at the time of Ext.D1 purchase, as a security, subsequently he discharged that debt by making payments. That cheque which was with the complainant, might have been misused by him, to extract more money from the revision petitioner. So, the conviction and sentence of the revision petitioner under Section 138 of the N.I Act by the courts below are liable to be interfered with. In the result, the conviction and sentence of the revision petitioner under Section 138 of the N.I Act are hereby set aside and he Crl.R.P No.1382 of 2008 20 is found not guilty of the offence alleged, and he is acquitted. His bail bond is cancelled and he is set at liberty forth with. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS JUDGE** smp