IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 882 of 2001()
1. PAPPAYIL KUTTIAPPU
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent :SRI.P.N.RAVINDRAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :11/02/2009
O R D E R
V.K.MOHANAN, J.
----------------------------------------------
CRL.A. No.882 OF 2001
----------------------------------------------
Dated, 11th February, 2009.
JUDGMENT
Complainant is the appellant, as he is aggrieved by the order
of acquittal under section 255(1) Cr.P.C. issued by the Court OF
Judicial First Class Magistrate, Parappanangadi in a prosecution for
the offence under section 138 of the Negotiable Instruments Act.
2. The case of the appellant/complainant is that both the
complainant as well as the accused are friends and the accused
borrowed a sum of Rs.1,90,000/- from the complainant to purchase
some property and promised to repay the amount within one
month. Since the amount was not repaid within the time assured,
the complainant approached the accused demanding the amount
and then the accused issued a cheque dated 12.2.1998 for an
amount of Rs.1,90,000/-. When the cheque was presented for
encashment on 18.2.98, the same was returned stating `funds
insufficient’, and consequently, the complainant caused to send a
demand notice to the accused and though the accused accepted
the notice, no amount was paid and therefore, the complainant
CRL.A. 882/01
-:2:-
approached the court by filing a private complaint to prosecute the
accused for the offence under section 138 of the N.I.Act. On the
basis of the sworn statement of the complainant, C.C.No.836/98
was instituted in the court below and on appearance of the accused,
particulars alleged in the complaint were read over and explained to
him and he pleaded not guilty which resulted in the further trial
during which the complainant himself was examined as PW1 and
Exts.P1 to P6 documents were marked. The incriminating
circumstances, which emerged during the evidence of the
complainant, when put to the accused under section 313 of Cr.P.C.,
he denied the same. The accused submitted written statement under
section 313 Cr.P.C. The case put forward by the accused through
such statement is to the effect that during the year 1992, he had
borrowed a sum of Rs.50,000/- from the complainant and at the
time of borrowing the said loan, he had issued a blank signed cheque
as security for the said loan. It is also stated that the loan amount,
though discharged by giving the amount through one Thondikodu
Cheriya Mohamed, there was a dispute regarding the interest and
the cheque was not returned and because of the said dispute, the
CRL.A. 882/01
-:3:-
complainant and accused were in inimical terms. Thus according to
the accused, out of the said rivalry and animosity, the complainant
preferred the present complaint by misusing the cheque which was
given as a security connected with the transaction in 1992 between
the accused and the complainant. During the time of the defence
evidence, the accused examined DWs 1 and 2 and also produced
Exts.D1 and D2 documents. On the basis of the rival pleadings and
the materials on record, the trial court formulated 4 issues for its
consideration and finally found that the version of PW1 that the
amount was given on 3.1.98 cannot be safely relied on. According
to the court, since the execution of Ext.P1 cheque is admitted, it can
only be held that Ext.P1 was given in some other transaction other
than the transaction alleged by PW1. Therefore, the court found that
Ext.P1 is not supported by consideration as stated by PW1. On the
basis of the above observation and finding, the court below further
held that the accused has rebutted the presumption available to the
complainant under sections 118 and 139 of the N.I.Act. Thus it is
concluded that it cannot be held that Ext.P1 was supported by
consideration and that it was given in discharge of any debt or other
CRL.A. 882/01
-:4:-
liability as alleged by the complainant. Accordingly, the accused is
found not guilty and he is acquitted. It is the above finding and order
of acquittal challenged in this appeal .
3. I have heard Sri P.S. Sreedharan Pillai, the learned
Counsel appearing for the appellant and Sri P.Vijayabhanu, the
learned counsel appearing the 2nd respondent.
4. When PW1 was examined, he had deposed in terms of
his case regarding the transaction. Ext.P1 cheque, Ext.P2 memo,
Ext.P3 memo, Ext.P4 lawyer notice, Ext.P5 series and Ext.P6 reply
notice were marked through PW1. But when the complainant
adduced evidence as PW1, he had deposed before the court that
the loan amount was given to the accused on 3.1.98. It is further
stated that the accused had assured that the amount will be
returned within one month and as he failed to repay the amount
within the time stipulated, he approached the accused and then he
issued the cheque for Rs.1,90,000/- showing the date as 12.2.98.
The above evidence is inadmissible. In the complaint, there is no
pleadings that the loan amount was given on 3.1.98. In the demand
notice also, the date of actual transaction was not shown. So it
CRL.A. 882/01
-:5:-
is impermissible to adduce evidence in support of the plea which is
not taken. During cross examination, PW1 stated :
" .
".
Thus according to PW1, the amount given to the accused was the
amount raised out of the sale of his property. He had also stated
that the property was sold to one Rehman. During the examination
he had further deposed before the court that the cheque in question
was obtained as security since the amount parted was a huge
amount. This is an entirely new case which is neither pleaded in
the complaint nor stated in the demand notice. So going by the
deposition of PW1 regarding the transaction and the pleadings in the
complaint and also the statement in the demand notice, it can be
seen that at the time of trial, the complainant put forward an entirely
different and new case.
5. The defence set up during the trial is to the effect that
admitting the transaction that took place during the year 1992 with
respect to Rs.50,000/-. According to the accused, during the year
1992 he obtained a loan of Rs.50,000/- from the complainant and the
CRL.A. 882/01
-:6:-
same was repaid by two instalments. That is the case raised by
the defence from the very beginning itself. In Ext.P6 reply notice
when the accused denied the transaction claimed by the
complainant, it is specifically stated about the loan transaction
between the complainant and accused with respect to Rs.50,000/-
and according to Ext.P6 reply, the entire account was settled by
18.7.97. It is also stated in Ext.P6 that towards the settlement of
the said account, the accused paid Rs.40,000/- on 27.3.94 and
another Rs.10,000/- on 8.5.96 and for raising the said amount , he
had sold his lorry bearing Regn.No.KL 11A 4796. It is also
submitted that since there was a dispute regarding interest with
respect to the said transaction, the complainant and accused were
at loggerheads. The trial court, after considering the evidence
adduced by the complainant and also after considering the defence
set up by the accused, came into the conclusion which indicated
earlier.
6. The learned counsel submitted that the accused has
admitted the transaction, execution of the cheque and issuance of
the same and therefore, the presumption under section 139 is
CRL.A. 882/01
-:7:-
available in favour of the complainant and the same was not
rebutted by the defence by adducing cogent and satisfactory
evidence Therefore, according to the learned counsel, the finding
arrived on by the court below is absolutely unsustainable and liable
to be set aside. It is also the case of the counsel for the appellant
that the accused has admitted the issuance of the cheque as
security. If that be so, the offence under section 138 of the N.I.Act
will be attracted if the cheque, even though, was given as security,
the same is bounced for the reasons mentioned in section 138 of
the N.I.Act. It is also the case of the counsel that though the
accused has taken a plea of discharge of the debt, the same is not
substantiated by adducing evidence. Hence, according to the
learned counsel, the trial court ought to have convicted the accused
accepting the case of the complainant.
7. Per contra, the learned counsel appearing for the
respondent/accused submitted that the date of payment of the
amount involved in the transaction claimed by the complainant is not
stated either in the notice or in the complaint and, therefore, the
above discrepancy is sufficient to reject the claim of the
CRL.A. 882/01
-:8:-
appellant/complainant. It is also pointed out that the deposition of
PW1 is to the effect that the cheque in question was given as a
security was not stated either in the complaint or in the notice and
therefore it will amount to contradiction which will go against the root
of the case of the complainant. It is also submitted that the inks of
the signature and handwriting seen in the cheque in question are
different and therefore the complainant has miserably failed to
prove the execution and issuance of the cheque.
8. I have carefully considered the contentions advanced by
both the counsels and also perused the records and materials. The
Apex Court, in the decision reported in Krishna Janardhan Bhat v.
Dattatraya Hegde (2008 (1) KLT 425 (SC), 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 existence of a debt also. 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. It is also held that possession of the cheque
by the complainant similarly goes a long way to prove issue of the
CRL.A. 882/01
-:9:-
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
two decisions, merely holding a cheque itself is not sufficient for the
holder to claim the benefit of statutory presumption under section
139 of the Act. It is for the holder to plea and prove that there was
a debt or liability due to the holder from the accused and the
cheque in question was issued for the discharge of the said debt or
liability . So the entire transaction has to be specifically pleaded
and proved. In the present case, the case of the complainant in the
compliant is to the effect that the accused borrowed a sum of
Rs.1,90,000/- and towards the discharge of said debt, the cheque
was issued. But no date was mentioned either in the complaint
or in Ext.P4 lawyer notice. It is true, the signed cheque of the
accused is in the hands of the complainant and according to the
complainant, the said cheque was issued by the accused towards
the discharge of the above debt connected with the above
CRL.A. 882/01
-:10:-
transaction. But the case of the accused is that the cheque in
question was issued by him to the complainant when he obtained
a loan of Rs.50,000/- from the complainant during the year 1992
and the same was given as a security in the said transaction. It is
also the case of the accused that that transaction was completely
settled by paying back the entire amount and there was some
dispute with respect to the interest and because of that dispute, they
were not in good terms. The learned counsel for the appellant
submitted that by issuing the cheque and by admitting the
signature, the accused has admitted the transaction, execution and
issuance of the cheque etc. That submission is not acceptable.
When the complainant approached the court by claiming the
transaction that took place during the year 1998, the accused
disputed the same and according to the accused, the transaction
was during the year 1992. Therefore, when the complainant
approached the court by filing the complaint claiming the
transaction, the court has to examine whether the complainant has
succeeded in establishing the alleged transaction and the execution
of the cheque in question. On such examination it can be seen that
CRL.A. 882/01
-:11:-
due to the contradictory versions of PW1- the complainant, that too,
an improvised version, does not seen place in the complaint itself,
is quite unbelievable. In the complaint, there is no case that the
cheque in question was given as security. But when PW1 was
examined he said that the cheque in question was given as security
and the same was given at the time when he parted with the
amount to the accused. But in the complaint as well as in the
Ext.P4 demand notice, according to the complainant, the cheque in
question was given by the accused during the year 1998 and
approached the accused pointing out the expiry of the time assured
by the accused for the repayment of the amount. It is also relevant
to note that PW1 deposed before the court that he got the amount
by disposing of his property and the said amount was given to the
accused on his demand. But by producing Ext.D1 document,
which got marked through DW1, the defenece has adduced
evidence to the effect that why the property was disposed of two
years back to the date of the alleged transaction. Therefore, the
court is of the opinion that the explanation offered by the
complainant for the raising of the amount that, it is the sale
CRL.A. 882/01
-:12:-
proceeds of the property connected with the transaction that taken
place two years back and kept in the house till the accused
demanded the loan amount, is quite unbelievable. So the above
finding of the court below is absolutely correct and no interference
is called for. Thus the above materials are in no way helpful for the
complainant to establish that the accused had executed Ext.P1
cheque and issued the same to the complainant towards the
discharge of the debt of Rs.1,90,000/- as claimed by the
complainant.
9. It is also relevant to note that the learned counsel
submitted that as the accused has admitted that Ext.P1 cheque
was issued as a security,the offecne is completed. The above
submission also not seems to be correct. It is true that the accused
has admitted that the cheque in question was issued as security, but
not for the transaction claimed by the complainant, but as a security
for the loan availed by the accused during the year 1992. Therefore,
the said plea also fails. Another point raised by the learned counsel
is that the defence did not substantiate the plea of discharge of the
loan. The fate of the above point is also similar to that of the
CRL.A. 882/01
-:13:-
previous conclusion. The accused pleaded that the loan availed by
him during 1992, viz. Rs.50,000/- was paid back to the complainant
by way of two instalments. That he had specifically pleaded in
Ext.P6 reply notice and also by examining DW2. The same was
substantiated. So, the discharge of the loan, pleaded by the accused
is not with respect to the transaction claimed by the complainant. In
the above factual background and since the complainant has even
prima facie failed to establish the the debt or liability and execution
and issuance of the cheque, he is not entitled to get the statutory
benefit under section 139 of the Act. So the complainant miserably
failed to establish the case against the accused. Even though the
complainant has not established a prima facie case and there is no
burden on the accused to rebut the presumption, the defence by
adducing evidence succeeded in establishing a probable case. In
Krishna Janardhan Bhat’s case(cited supra), the Apex Court has
held that an accused for discharging the burden of proof placed
upon him under a statute need not examine himself. He may
discharge his burden on the basis of the materials already brought
on records. In the very same decision, it is further held that
CRL.A. 882/01
-:14:-
whereas prosecution must prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as to prove a defence on
the part of an accused is `preponderance of probabilities’. It is further
held that inference of preponderance of probabilities can be drawn
not only from the materials brought on records by the parties but also
by reference to the circumstances upon which he relies. The Apex
Court has also held in the decision in Narayana Menon v. State of
Kerala (2006(3) KLT 404)(SC), the Apex Court has further held that
the accused is only to discharge the initial onus of proof and he is
note required to disprove the prosecution case.
10. The Apex Court while considering the presumption
under section 118 and 139 of N.I.Act discussed about the scope and
ambit as per its decision in M/s. Kumar Exports v. M/s.Sharma
Carpets (2009(1) Supreme 231). In the above decision the Apex
Court has held that “the accused in a trial under section 138 of
the Act has two options. He can either show that consideration
and debt did not exist or that under the particular
circumstances of the case the non-existence of consideration
CRL.A. 882/01
-:15:-
and debt is so probable that a prudent man ought to suppose
that no consideration and debt existed”. It is also held that “to
disprove the presumptions, the accused should bring on record
such fact and circumstances, upon consideration of which, the
court may either believe that the consideration and debt did not
exist or their non-existence was so probable” The Apex court
further observed: “Apart from adducing direct evidence to prove
that the note in question was not supported by consideration or
that he had not incurred any debt or liability, the accused also
rely upon circumstantial evidence and if the circumstances so
relied upon are compelling, the burden may likewise shift again on
to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in Section
114 of the Evidence Act to rebut the presumptions arising under
Sections 118 and 139 of the Act. The accused has also an option
CRL.A. 882/01
-:16:-
to prove the non-existence of consideration and debt or liability
either by letting in evidence or in some clear and exceptional
cases, from the case set out by the complainant, that is, the
averments in the complaint, the case set out in the statutory
notice and evidence adduced by the complainant during the trial”.
In the light of the above settled legal position, I am of the view that
the accused has rebutted the presumption which is otherwise
available to the complainant under section 139 of the N.I.Act.
11. The appellant now seeks interference of this Court in an
order of acquittal passed by the trial court. In Ghureylal v. State of
U.P. (2008(4) KLT SN17(C.No.17)(SC), the Apex Court has laid
down certain circumstances under which the appellate court can
interfere with the order of acquittal. In the same decision, the Apex
Court has categorically stated that the appellate court can interfere
only for very substantial and compelling reasons. The same
proposition is reiterated in the decision reported in Batcu
Venkateshwarlu and Ors v. Public Prosecutor H.C. of A.P. (2009
(1) Supreme 67) . In the said decision, it is held that in case of
CRL.A. 882/01
-:17:-
acquittal, there is a double presumptions in favour of the accused,
unless there is a substantial and compelling reason for holding
that the trial court was wrong, the appellate court shall not interfere
with the order of acquittal. Going by the materials on record, and the
impugned judgment, I am of the view that no compelling or
substantial reasons are made out to interfere with the order of
acquittal.
In the result, there is no merit in the appeal and accordingly,
the same is dismissed.
V.K.MOHANAN, JUDGE.
kvm/-
CRL.A. 882/01
-:18:-
V.K.MOHANAN, J.
CRL.A.NO.882 OF 2001
Judgment
Dated:11.2.2009