IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3796 of 2006()
1. D.AJAYAKUMAR, S/O. DEVARAJAN POTTI,
... Petitioner
Vs
1. V.RADHAKRISHNAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.S.SREEKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/08/2008
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3796 of 2006
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Dated: 11-08-2008
ORDER
In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C.
the petitioner who is the accused in C.C. No.232 of 1998 on the file of
the Judl. fist Class Magistrate Court-I, Kollam which was a prosecution
under Sec. 138 of the Negotiable Instruments Act, 1881 (N.I. Act for
short) in respect of a cheque for a sum of Rs.5,00,000/- challenges
the conviction entered and the sentence passed against him
concurrently by the lower appellate court for the aforementioned
offence.
2. The case of the prosecution can be summarised as
follows:
Pursuant to the acquaintance which the accused had with
P.W.1 the accused borrowed a sum of Rs. 5,00,000/- from the
complainant from the residence of the complainant on 28-10-1997
and issued Ext.P1 cheque in discharge of the said liability. When the
cheque was presented before the drawee brank (the Pannivizha
Service Co-operative Bank Limited branch), the same was dishonoured
on the ground that funds were insufficient and also on the ground that
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the payment was stopped by the accused. To the statutory notice by
the complainant no reply was sent by the accused nor any payment
made. Hence, the complaint.
3. On the side of the complainant he examined himself as
P.W.1 and got marked 8 documents as Exts.P1 to P8.
4. After the close of the prosecution evidence, the revision
petitioner/accused was questioned under Sec. 313 with regard to the
incriminating circumstances appearing against him in the evidence for
the prosecution. He denied those circumstances and maintained his
innocence. He had the following to submit before court:-
He does not have any acquaintance with the complainant. He
was seeing the complainant for the first time in court. He had lost a
signed blank cheque along with his purse during the course of
journey. The complainant had somehow or other got possession of
the cheque leaf and converted the same into Ext.P1 cheque. He had
informed the drawee bank regarding the loss of the cheque. He is
innocent in the case.
5. When called upon to enter on his defence the revision
petitioner/accused examined four witnesses as DWs 1 to 4 and got
marked three documents as Exts.D1 to D3. The learned Magistrate,
after trial, as per judgment dated 14-1-2002 found the revision
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petitioner guilty of the offence and sentenced him to simple
imprisonment for one month and directed him to pay Rs. 5,50,000/- as
compensation under Sec. 357 (3) Cr.P.C. On appeal preferred by him
as Crl.Appeal No.25 of 2002 before the Sessions Court, Kollam, the
learned Addl. District & Sessions Judge (Adhoc-II), Kollam as per
judgment dated 24-3-2006 confirmed the conviction but modified the
sentence directing him to undergo simple imprisonment for six months
and to pay the compensation of Rs. 5,50,000/- under Sec. 357 (3)
Cr.P.C. with a default sentence of simple imprisonment for three
months. Hence this Revision.
6. I heard the learned counsel appearing for the revision
petitioner/accused as well as the learned counsel appearing for the
first respondent/complainant.
7. On behalf of the complainant the following submissions
were made:-
On the right hand top of Ext.P7 ledger extract it is shown that a
cheque book containing leaves from 2811 to 2820 was issued to the
accused the holder of S.B. Account No. 1072 on 20-12-1994. The
number of Ext. P1 cheque is 2815. Ext.P7 ledger extract shows that
Cheque No. 2811 was returned on 14-7-1995 and Ext.P1 cheque was
returned on 29-7-1997. Ext.D2 letter dated 22-10-1997 is a letter
Crl. R.P. No. 3796 of 2006 -:4:-
claimed by the accused to have been given to the drawee bank
informing the bank that a signed blank cheque along with his purse
was lost and asking the bank not to make any payment against the
said signed blank cheque. This is a document which has been
prepared by the accused in collusion with the bank manager
examined as D.W.1. D.W.1 had to admit that Ext.D2 letter does not
contain any endorsement to the effect that it was received by the bank
on 22-10-1997. P.W.1, the complainant is a building contractor and
he was having a sum of Rs. 5,00,000/- at his residence for the past
three days prior to 28-10-1997. Going by the testimony of P.W.1
the accused came to his residence on 28-10-1997 and asked for Rs.
5,00,000/- which P.w.1 gave him and towards the discharge of the
said liability Ext.P1 cheque was given on the same day. In Ext.P1
cheque the payee is none other than P.W.1, the complainant. The
stand taken by the accused is one of total denial. But the accused
admits that Ext.P1 cheque is one pertaining to Account No. 1072
belonging to him. The only explanation which the accused would offer
for the custody of the cheque leaf with P.W.1 the complainant is by
way of theft. But he has admitted his signature in Ext.P1 cheque. If
so, the burden was on the accused to substantiate his defence in view
of the decision of the Apex Court in K. Bhaskara v. Sankaran
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Vaidhyan Balan – AIR 1997 SC 3762. According to the accused,
Ext.P1 cheque was given by him as a blank signed cheque by way of
security to one Gopikuttan with whom he had prior transaction.
After the said transaction was over the blank signed cheque was
returned by the said Gopikuttan to the accused and it was the said
blank signed cheque which was allegedly lost by him in transit.
Eventhough the accused cited the said Gopikuttan as a defence
witness and eventhough the said Gopikuttan was present in court, for
reasons best known to the accused he did not examine the said
Gopikuttan. D.W.2 is the head constable who registered Ext.D3
F.I.R. on 19-4-2000 against P.W.1 and Gopikuttan for allegedly
threatening the accused pursuant to the earlier transaction which the
accused had with Gopikuttan. While D.W.3 who allegedly witnessed
the settlement of the dispute between the accused and Gopikuttan
would say that the settlement was before the Dy.S.P. , the very same
person would say at one place that the settlement was in the
presence of Sreelekha , the Superintendent of Police. Such a
witness could not have been believed for a moment. In preference
to this defence witness the courts below have relied on the testimony
of P.W.1 to uphold the borrowal alleged by him. After the decision
of the Apex Court in M/s. Modi Cement Ltd. v. Sri. Kuchil Kumar
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Nandi – 1998 (1) Crime 268 even stoppage of payment amount
to offence punishable under Sec. 138 of the N.I. Act. Such being the
position, the decision rendered by the courts below do not call for
any interference.
8. I am afraid that I cannot agree with the above
submissions. It is now well settled that notwithstanding the statutory
presumptions under Sec. 118 (a) and 139 of the N.I. Act, it is for the
complainant to establish his case beyond doubt, particularly, in a case
where the defence is able to create some doubt in the mind of the
court regarding the transaction in question. After examining the oral
and documentary evidence in the case, I have no hesitation to
conclude that the complainant has failed to establish his case so as
to justify the conviction recorded against the revision petitioner.
Going by the testimony of P.W.1 the complainant, the accused went to
his house on 28-10-1997 and requested for a loan of Rs. 5 lakhs.
Eventhough P.W.1 would claim to be a building contractor and would
say that he started construction of buildings since 1965, no scrap of
paper was produced by him in support of the same. He was aged 53
when he was examined before court on 24-2-2001. If he had started
constructing buildings since 1965, then he would have been aged
only 17 years in the year 1965. He unwittingly admitted that he is a
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construction worker. He admitted that eventhough he has a bank
account, he does not put amounts in his bank, that he is not an
income tax payee, that there are no properties in his name, that he
has no telephone or water connection in his house. His income as
shown in his ration card is Rs. 1,500/- per year. According to him
a sum of Rs. 5,00,000/- was entrusted with him for constructing a
building. He would have it that he was having the said account at
his residence for 2-3- days. It is interesting to note that he has no
case that the accused was aware of P.W.1 having with him a sum of
Rs. 5,00,000/- in his house. If his version is disbelieved then it was
in the morning of 28-10-1997 that the accused went to his house and
asked for a loan of Rs. 5,00,000. P.W.1 would say that he gave the
amount asked for and the accused gave Ext.P1 cheque dated 28-
=10-1997 in return. But strangely enough the name of the payee as
well as the amount in words are typewritten in Ext.P1.
9. As against the above version of P.W.1 the specific case of
the accused right from Ext.D1 reply to the statutory notice and which
was marked through P.W.1 is that the complainant is a total stranger
to him, that he had no transaction at all with the complainant, that
he had not issued the cheque in question to the complainant and that
he had lost custody of a signed blank cheque while he was travelling
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and the above fact was promptly communicated to his bank on 22-10-
1997 itself. DW1, the Secretary of the drawee bank has deposed that
Ext. D2 letter dated 22-10-1997 from the accused informing that he
lost a signed blank cheque along with his purse and requesting the
bank to stop payment in case the said cheque was presented for
collection was received in the bank on 22-10-1997. It is true that
Ext. D2 letter does not contain any endorsement on 22-10-1997 of
having received the letter on that date itself. But it must remembered
that the bank in question is a Service Co-operative Bank and not a
Government Department where any letter or representation received
is taken on file with initials and date of the officer receiving the same.
Ext.P7 ledger contains an endorsement regarding the receipt of Ext.D2
letter containing the request of the accused countermanding
payment. Ext.P1 cheque was admittedly dishonored on the following
grounds:
“i) funds insufficient
ii) payment stopped”
It is true that the accused raised a contention that Ext.P1 was
originally issued by him as a signed blank cheque to one Gopikuttan,
when he entered into a transaction with Gopikuttan and that
consequent on the closure of that transaction the said Gopikuttan
returned the signed blank cheque to P.W.1 the complainant that the
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the accused while travelling lost his purse together with the signed
blank cheque on 22-10-1997 and that he promptly informed the
drawee bank about the loss of the cheque on the same day as
revealed by Ext.D2. Both the courts below blamed the accused for
not examining Gopikuttan and for not producing the documents
pertaining to the earlier transaction which he had with Gopikuttan.
The question of casting the burden on the shoulders of the accused
and his examining Gopikuttan and producing documents in support of
the earlier transaction would arise only if the complainant had, prima
facie, established the loan transaction set up by him. When as
indicated above the transaction set up by the complainant in the
complaint itself is found to be improbable, it was for the complainant
to establish his case beyond reasonable doubt. instead of
substantiating his case he cannot indulge in picking holes in the
defence. D.W.3 the person examined to prove the settlement of the
transaction between the accused and Gopikuttan has deposed that
the said transaction was settled before the police. Whether it was
before the Dy.S.P. or before the Superintendent of Police, the fact
remains that the accused had adduced evidence to show that
pursuant to the settlement between himself and Gopikuttan the
signed blank cheque which is entrusted with Gopikuttan was returned
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by Gopikuttan and it was the said signed blank cheque which was lost
while undertaking a travel on 22-7-1997. Going by the dictum laid
down by the Apex Court in M.S. Narayana Menon alias Mani v.
State of Kerala and Another – 2006 (6) SCC 39 it has been
settled that the accused in a prosecution under Sec. 138 of the N.I.
Act need only rebut the presumption by the yardstick of
preponderance of probabilities. The burden on the accused in this
regard is not as high as that of the prosecution. He need not totally
disprove the prosecution case. The accused need not even mount the
witness box to substantiate his case. He can rely on the evidence of
the complainant himself to demolish the case of the complainant.
Apart from Ext.D2 stop memo, the evidence of DW1 the bank
manager was sufficient to rebut the presumption. That apart, the
accused had adduced further evidence as to show he lost possession
of the signed blank cheque which was in his custody. The factum of
theft was duly intimated to the drawee bank. Under these
circumstances, the courts below were not justified in ignoring these
vital aspects and recording the conviction against the revision
petitioner. The conviction recorded by the courts below overlooking
the above vital aspects cannot be sustained and is accordingly
dislodged. Since the complainant has not established his case
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beyond reasonable doubt, the revision petitioner is certainly entitled to
the benefit of such doubt available to him in law. In the result this
revision petition is allowed and the conviction entered and the
sentence passed against the revision petitioner are set aside.
Amounts, if any, deposited before the trail court shall be refunded to
the revision petitioner.
V.Ramkumar, Judge.
ani.
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