IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1690 of 2004()
1. E.J.GEORGE, S/O.JOSEPH,
... Petitioner
Vs
1. DR.RAJAN JACOB, S/O.JACOB,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.T.V.GEORGE
For Respondent :SRI.M.NARENDRA KUMAR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :12/12/2008
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 1690 of 2004
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Dated this the 12th day of December, 2008
J U D G M E N T
This appeal is filed at the instance of a
complainant in a prosecution for the offence under Section
138 of the Negotiable Instruments Act (for short ‘the
N.I.Act’). As per the impugned judgment, the trial court
acquitted the accused under Section 255(1) of the Code of
Criminal Procedure and hence, this appeal.
2. The case of the complainant is that the
accused borrowed an amount of Rs.2,00,000/- on
13.1.2003 from the complainant and towards the
discharge of the said liability, on the same day of
borrowal itself, a postdated cheque, bearing date as
20.1.2003 for the aforesaid amount, was given. It is the
further case of the complainant that when the said cheque
was presented for encashment, the same was dishonoured
for the reason “Payment stopped by the drawer” and
hence, according to the complainant, a lawyer notice i.e.,
Ext.P4 dated 31.1.2003 was issued to the accused
intimating him regarding the dishonour of cheque and
demanding to pay the amount covered by the cheque.
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The said notice was received by the accused on 1.2.2003.
The accused issued Ext.D1 reply to the above notice, denying
the execution, issuance of cheque and also the transaction.
As the amount was not paid, the complainant approached the
court below by filing a complaint under Section 138 of the
N.I.Act. When the accused appeared, the particulars of the
allegations contained in the complaint were read over and
explained to him to which he pleaded not guilty which
resulted in further trial during which PWs.1 and 2 were
examined and EXts.P1 to P7 were marked from the side of the
complainant. When the incriminating circumstances,
emerged during the evidence of the complainant, were put to
the accused, he denied the same. It is the further case of the
accused that the cheque in question viz., Ext.P1 was not
executed and issued in favour of the complainant as claimed
by him, but on the other hand, the same was entrusted with
one P.E.Joseph from whom the accused availed of loan and
the said cheque was given as a security. It is also the case of
the accused that the said cheque was stolen by DW1 who is
the son of said P.E.Joseph and entrusted the same with
PW1/the complainant based upon which the present case is
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foisted against the accused. On the basis of the pleadings,
rival contentions and materials on record, the court below
considered three issues for its determination and finally found
that Ext.P1 cheque was not issued by the accused to PW1/the
complainant for discharging his liability as alleged and
accordingly, found that the accused is guilty under Section
138 of the N.I.Act. Consequently, the accused is acquitted. It
is the above finding and order of acquittal challenged in this
appeal.
3. I have heard learned counsel for the appellant as
well as the contesting respondents.
4. Learned counsel Mr.T.V.George appearing for the
appellant vehemently argued that the complainant has
established his case by adducing sufficient and cogent
evidence regarding the transaction, execution and issuance of
cheque. Therefore, according to the learned counsel, the
statutory presumption under Section 139 of the N.I.Act is
available in favour of the complainant and the accused has
miserably failed to rebut the presumption. Thus, according to
the learned counsel, the order of acquittal passed by the
court below is liable to be set aside. Learned counsel pointed
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out that the defence has no consistent case and the falsity of
the defence case itself is sufficient to interfere with the order
of acquittal passed by the court below.
5. Per contra, the learned counsel appearing for the
first respondent/accused submits that except the interested
version of PW1/the complainant, there is no statutory and
acceptable evidence to attract the ingredients of Section 138
of the N.I.Act. The learned counsel pointed out that merely
on the basis of EXt.P1, it cannot be said that Section 138 of
the N.I.Act is attracted against the accused. It is the further
case of the counsel that even though the complainant has
miserably failed to establish a prima facie case, so as to avail
of the presumption under Section 139 of the N.I.Act, the
accused has succeeded in establishing a probable case and
thereby, rebutted the presumption which is otherwise
available under Section 139 of the N.I.Act. The learned
counsel pointed out that the defence case is not put up for
the first time, at the time of trial, but it can be traced back at
least from the date of Ext.P7, which is bearing date as
2.1.2003. Thus, the learned counsel submits that after having
satisfied with the probability of the defence case, the trial
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court came into a finding that the cheque in question was not
issued by the accused in favour of the complainant on the
basis of the alleged transaction and accordingly, the accused
was acquitted and by such acquittal, the innocence of the
accused is once again reinforced. Thus, it is submitted that
while exercising the appellate jurisdiction, such order of
acquittal may not be interfered with by this Court.
6. I have carefully considered the contentions of
both counsel and also perused the materials and evidence on
record.
7. The case of the complainant is purely based upon
Ext.P1 cheque. When PW1 was examined, he had stated that
on demand of the accused, a sum of Rs.2,00,000/- was given
as loan on 13.1.2003 and he had received Ext.P1 cheque
dated 20.1.2003. In his chief examination, he had stated that
because of his friendship with the accused, the said amount
was given. In cross examination, he had deposed that he is
an owner of an autorickshaw and occasionally, he used to
drive the auto. He had also stated that he is also having 50
cents of property. To a suggestive question that he had no
capacity to pay Rs.2,00,000/-, he answered that it was not
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correct. He said that near the house of the accused, he had
property during the year 1989. It was also stated that the
property was in the name of his wife. Though he had stated
that there was frequent transaction with the accused, no
details are given. In this juncture, it is relevant to note that
the accused, who himself was examined as DW4, had stated
that he is a Doctor by profession and he had Doctorate in
Medicine. He had also stated that he was not having any
prior acquaintance with the complainant and he is seeing the
complainant for the first time in the court. It is his case that
Ext.P1 cheque was entrusted with his friend one P.E.Joseph
Paradiyil. He had also stated that in Ext.P1, he had put his
signature only and he had preferred Ext.P7 wherein it is
stated that the cheque in question was lost while he was
travelling in a bus. According to him, the said P.E.Joseph told
him that the cheque was missed on 2.1.2003. According to
him, on the same day itself, he went to his bank and lodged
EXt.P7 stop memo. In the chief examination itself, DW4
stated that as told by the said P.E.Joseph, he went to the bank
for the purpose of issuing the stop memo. It was also his case
that the Secretary of the Bank advised him to give the stop
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memo by giving some reason. According to him, actually it
was not while travelling in the bus, the cheque was lost. It
was also his version that such an endorsement was made in
Ext.P7 so as to book the person who brings the cheque and to
entrust the said person with the Police. It is also his case that
he was not aware as to who had taken the cheque at the time
when he gave Ext.P7 memo. The accused had further stated
that on getting EXt.P4 notice from the complainant, he had
shown the same to the said P.E.Joseph and then, the said
Joseph stated that the cheque in question would have been
stolen by his son. The said fact has been, according to the
accused, put in black and white by the said Joseph in fifty
rupees stamp paper and the original of the same was
entrusted with the Advocate for filing a criminal case. He had
also stated that he had caused to send Ext.D1 notice to the
counsel for the complainant. He had also stated that he
preferred a petition before the Kuravilangad Police, but there
was no action. It is also his case that he had preferred a
private complaint before the Judicial First Class Magistrate
Court, Palai against the complainant in the present case and
against Mr.Saji Joseph, DW1 who is the son of the said Joseph.
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At the time of trial of the present case, that private complaint
was pending trial in the same court.
8. In this juncture, it is relevant to consider the
decision of the Apex Court reported in Krishna Janardhan
Bhat v. Dattatraya Hegde [2008(1) KLT 425(SC)]. In the
above case, the Hon’ble Apex Court has held that existence of
a legally recoverable debt is not a matter of presumption
under Section 139 of the N.I.Act and it does not raise a
presumption in regard to the existence of a debt also. From
the above, it is clear that even if the holder of cheque is able
to prove the execution and issuance of cheque, no
presumption can be drawn regarding the existence of debt.
In the present case, even going by the deposition of PW1, it
can be seen that a substantial huge amount was alleged to
have given as loan to the accused without any security and
there is no other evidence to prove such a transaction. The
evidences available on record, according to me, are not
sufficient to show that the complainant has that much
financial capacity to give such a huge amount as loan, that
too without any claim or provision for interest. There is also
dearth of evidence to show the relationship between the
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complainant and the accused to part with such substantial
huge amount without any security.
9. Still then, this Court in the decision reported in
Johnson Scaria v. State of Kerala [2006(4) KLT 290] has
held that admission of signature in a cheque goes a long way
to prove due execution and possession of the cheque by the
complainant similarly goes a long way to prove issue of the
cheque. The burden rests on the complainant to prove
execution and issue. But, under Section 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 view of the above decisions, the
court has to draw presumption and inferences based upon the
materials on record and also on the basis of explanation
offered. In the present case, as observed by the trial court,
the evidence on the side of the complainant is not sufficient
to show the execution, the issuance of the cheque and also
the transaction. At the same time, the defence has a specific
case as to how Ext.P1 cheque reached in the hands of the
complainant. Such defence case is not for the first time taken
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at the time of trial. As pointed out earlier, it can be traced
from the date on which the accused issued Ext.P7 on the
basis of the information he got from Sri.P.E.Joseph regarding
the theft of Ext.P1 by his son. Of course, in Ext.P7, the reason
given is that the cheque in question was lost while travelling
in a bus. But, he had given a convincing explanation as to
why such a reason was stated in Ext.P7. When Ext.D1 reply
was sent to Ext.P4, the same defence was taken and he
denied the execution and issuance of cheque in favour of the
complainant. It is also borne out from records that even prior
to the present complaint, he had caused to issue Ext.D6
lawyer notice to DW1 and that DW1 denied the acceptance of
Ext.D6 notice and thereby, it is proved that DW1 had issued
Ext.D3 reply notice. Thereafter, the accused has also filed a
private complaint before the Judicial First Class Magistrate
Court, Palai, when the Police failed to take any action on his
complaint before them. Going by these materials and on
appreciation of the same, I am of the view that the defence
has made out a probable case.
10. The Honourable Apex Court in the decision
reported in Narayana Menon v. State of Kerala [2006(3)
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KLT 404(SC)] has held that 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 needed is to raise a probable defence. Even for the said
purpose, the evidence adduced on behalf of the complainant
could be relied upon. 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. On application of the above dictum in the
present case, I am of the view that the defence succeeded in
establishing a probable case. Therefore, the trial court has
correctly found that the complainant has failed to establish
the execution and the transaction and according to the trial
court, the defence version is more probable. It was on such a
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conclusion, the trial court came into a conclusion that the
accused is not guilty of the charge levelled against him. In
the decision reported in Ghurey Lal v. State of U.P. [2008
(4) KLT SN 17 (C.No.17)(SC)], the Apex Court has elaborated
seven circumstances under which the appellate court can
interfere with an order of acquittal. In the said decision, the
Honourable Supreme Court has held that the appellate court
can interfere with the order of acquittal only when there are
very substantial and compelling reasons. I find no such
substantial and compelling reasons to interfere with the order
of acquittal passed by the trial court. Consequently, the
appeal fails.
In the result, there is no merit in the appeal and
the appeal is dismissed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, JJ.
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Crl.A.NO. OF 200
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J U D G M E N T
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DATED: -12-2008