IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 26 of 2002()
1. T.M.ALIYAR RAVUTHAR,
... Petitioner
Vs
1. M.P.MOIDEEN, MOOLAKKAL PUTHIYAPURAYIL
... Respondent
For Petitioner :SRI.O.V.MANIPRASAD
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/03/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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CRL.APPEAL.NO.26 OF 2002 (A)
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Dated this the 24th day of March, 2009
O R D E R
The appeal is filed by the complainant, whose complaint
under Section 138 of the Negotiable Instruments Act, in short,
the ‘N.I.Act’, against the respondent, after trial, ended in a
judgment of acquittal. Questioning the legality, propriety and
correctness of that acquittal, he has preferred this appeal.
2. The case of the complainant is that, towards a debt
arising from a loan transaction, the accused issued Ext.P1
cheque for a sum of Rs.80,000/-, promising its encashment on
presentation in due course. The cheque presented was,
however, dishonoured due to insufficiency of funds in the
account of the accused. Statutory notice issued intimating
dishonour and demanding the sum covered by the instrument,
was returned unclaimed. Complainant, thereupon, launched
the prosecution against the accused under Section 138 of the
CRL.A.26/02 2
N.I.Act. The accused pleaded not guilty. Complainant
examined himself as PW1 and got marked Exts.P1 to P5 to
prove his case. The accused, during the cross examination of
the complainant, set up a defence that the cheque had been
issued as a security in respect of a transaction relating to the
issue of a visa for the son-in-law of the complainant; through
his travel agency. After obtaining the visa, the son-in-law of
the complainant did not make use of it. Money paid for
obtaining the visa was demanded back from the accused,
which gave rise to a police complaint and also a dharna at his
residence. Pursuant to intervention of the police, he had
issued the cheque as security and, later, substantial amount
agreed to be paid under the transaction relating to the visa,
was also paid to the complainant. When questioned under
Section 313 of the Cr.P.C., the plea of defence as stated above
was reiterated and in support of that case, he examined two
witnesses as DWs.1 and 2 and got exhibited D1. The learned
Magistrate, after appreciating the materials tendered in the
case, came to the view that the complainant had not proved
his case that there was a loan transaction with the accused as
CRL.A.26/02 3
alleged in his complaint, and, the accused had rebutted the
presumption arising under Section 139 of the N.I.Act. On the
materials tendered in the case, the learned Magistrate was of
the view that in order to sustain the prosecution against the
accused, the complainant was bound to prove the loan
transaction leading to the issue of Ext.P1 cheque alleged in his
complaint. Concluding that the complainant did not establish
his case with convincing evidence, and the defence case was
probable the accused was acquitted. The legality and
correctness of that decision is impeached in the appeal.
3. I heard the counsel of both sides. The materials
produced and circumstances presented in the case indicating
that the cheque had been issued by the accused in discharge
of a debt/liability to the complainant, which is even admitted
by the defence, according to the learned counsel for the
complainant, was lost sight by the court below and that had
resulted in forming a wrong conclusion resulting in
manifestation of injustice. Version of the complainant as to
the circumstance that Ext.P1 cheque was handed over by the
CRL.A.26/02 4
accused, in the absence of rebuttal evidence sufficient enough
to discard the statutory presumption, should have received
acceptance, submits the counsel. Inviting my attention to the
suggestive questions put to the complainant, the learned
counsel for the complainant submitted that according to the
accused, what ever part payment made to the complainant had
been made only after collecting documents/receipts; but, not
even a single document evidencing any payment was
produced. An admission made by the complainant that he had
received Rs.15,000/- at the station, which according to him,
was in connection with a different transaction, was given
unmerited consideration by the learned Magistrate, to hold
that whatever statutory presumption available in his favour
had been rebutted, submits the counsel. There is no concrete
evidence to show that the sum of Rs.15,000/-, which is
admitted as collected, had been received by the complainant
after the execution and handing over of Ext.P1 cheque. The
learned counsel for the complainant relied on Kumar
Exports v. Sharma Carpets ((2009) 2 SCC 513) to
contend that the learned Magistrate went wrong in insisting
CRL.A.26/02 5
proof of the transaction relating to Ext.P1 cheque, when
special rules of evidence relating to presumptions are
applicable to the case. On the proved facts and
circumstances involved in the present case, it is submitted
that the acquittal passed in favour of the accused based on
misappreciation of the evidence, deserves to be interfered
with and a conviction has to be founded against him for the
offence under Section 138 of the N.I.Act. The learned counsel
appearing for the accused supported the judgment of acquittal
passed by the learned Magistrate contending that the facts
and circumstances as established by the materials produced in
the case would unerringly show that the case of the
complainant that he had a loan transaction with the accused
leading to the issue of Ext.P1 cheque was thorougly
unbelievable. The defence case pleaded by the accused to
some extent is practically conceded by the complainant when
he was subjected to cross examination, submits the counsel.
The complainant, examined as PW1, had initially contended
that he had no transaction with the accused other than the
one covered by Ext.P1 cheque, but, later in the heat of cross
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examination admitting that he had received Rs.15,000/- from
the accused, he gave an explanation that it was in respect of a
different transaction. The complainant had no consistent case
as borne out by the contradiction so brought out in his
evidence, is the submission of the counsel. The complainant
had earlier filed a civil case on the cheque, but it was
dismissed for non payment of court fee. That dismissal has
become final is also banked upon by the counsel as a pertinent
circumstance discrediting the case of the complainant.
Complainant, in his evidence as PW1, had admitted of
receiving a sum of Rs.15,000/- from the accused, and which,
according to the counsel, amounted to a part payment of the
sum covered by the cheque. Relying on Joseph Sartho v.
Gopinathan Nair (2008 (4) KLT 509), the learned counsel
for the accused submitted that when part payment of sum
covered by the cheque had been received, a prosecution, on
the basis of the cheque dishonoured cannot be entertained,
and on that solitary ground itself the complaint must fail.
Savings bank account of the complainant, at the relevant time,
did not show a balance of Rs.80,000/-, as evidenced by the
CRL.A.26/02 7
extract of that account brought in as Ext.D1 in evidence is also
relied upon by the counsel to contend that the case of the
complainant that he had advanced Rs.80,000/- to the accused
cannot be believed for a moment. The learned Magistrate, on
the basis of the materials produced by both sides in the case,
has rightly and correctly held that the statutory presumption
under Section 139 of the N.I.Act had been rebutted; and, in
the absence of cogent proof regarding the loan transaction
alleged by the complainant, which is lacking in the case, his
complaint must fail, submits the counsel. In order to rebut the
presumption under Section 139 of the N.I.Act, the accused
need not examine himself, submits the counsel relying on
Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008
(1) KHC 410 (SC)), contending that he may discharge that
burden on the basis of the materials available. So, according
to the learned counsel, no interference with the judgment of
acquittal is called for.
4. I have examined the materials of the case, giving
consideration to the submissions made by the counsel of both
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sides. First and foremost, the appreciation of evidence in the
case by the learned Magistrate, as disclosed by the judgment,
appears to be erroneous. The learned Magistrate had
proceeded with an enquiry, whether the accused had
borrowed Rs.80,000/- from the complainant and issued Ext.P1
cheque to discharge that debt. Ext.P1 cheque was issued as a
security in connection with a different transaction was the
plea canvassed by the accused. He had no case when PW1
was cross examined that the cheque was issued in blank form
with his signature alone though he had developed such a case
when questioned under Section 313 of Cr.P.C. During the
examination of PW1, what was suggested was that in respect
of a different transaction relating to the obtaining of a visa for
the son-in-law of the complainant, some dispute arose between
the parties and pursuant to police complaint, it was settled at
the police station. When such a settlement was effected, he
issued a cheque as security was his version. When such a
defence had been set up to a prosecution arising from a
complaint under Section 138 of the N.I.Act, naturally, one
would expect the accused to lead evidence and marshal
CRL.A.26/02 9
circumstances establishing that the transaction giving rise to
the issue of the cheque had taken place as contended. Merely
because the accused had contended that the cheque was
issued in ‘blank form’ with his signature alone, which was his
later case, it does not presuppose that it has to be accepted as
gospel truth. The totality of the circumstances has to be
viewed to examine whether in the nature of defence so set up,
the complainant has to prove due execution of the cheque. In
that context, the statutory notice issued on dishonour of the
cheque and the refusal to accept that notice, which was
returned unclaimed, assumes much significance. The accused
has not established by any material that notice issued in his
address was returned on account of some fraud played by the
complainant. Returning of the notice as ‘unclaimed’, indicated
due service of the notice, as there was improper refusal on the
part of the accused to accept that notice. Admittedly, the
cheque arose from an account maintained by the accused and
it was dishonoured due to insufficiency of funds in his account.
Coupled with these circumstances, the sworn testimony of the
complainant that a duly executed cheque was handed over by
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the accused to discharge the debt or liability has to be
appreciated. When complainant examined as PW1 was
subjected to cross examination, it has been brought out that in
respect of a transaction, he had collected a sum of Rs.15,000/-
from the accused. But it has not been established that such
payment was made after handing over of the Ext.P1 cheque to
the complainant. True, the complainant as PW1 had stated
that he had no transaction with the accused other than the
one covered by the cheque. That version was shown incorrect
when he admitted of receiving Rs.15,000/- at the station in
respect of a different transaction. But the crucial question is
whether he had received such sum after the issue of Ext.P1
cheque and as part of the sum covered under that instrument.
Even the accused has no such case, nor even a suggestion to
the complainant that the sum of Rs.15,000/- was paid after
the issue of the cheque. So much so, the discrepancy or even
contradiction in the evidence of PW1 as to the collection of
Rs.15,000/- from the accused does not have any significance.
5. PW1 is a retired teacher and it is his case that the
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monetary benefits obtained by him after his retirement was
handed over to the accused as a loan. His case was that in
discharge of the loan the accused issued Ext.P1 cheque. Even
assuming that the cheque had been issued in respect of a
transaction relating to the issue of a visa, as contended by the
accused, where the proved facts prima facie show that the
cheque had been issued towards discharge of a debt or
liability, and it had been dishonoured on account of
insufficiency of funds in the account of the accused, he cannot
escape from the penal consequences on such dishonour. I do
not find any merit in the submission made by the learned
counsel for the accused relating to the dismissal of the civil
case filed to claim the amount under the cheque, as it has no
bearing on the prosecution launched on dishonour of the
cheque. Penal provisions have been brought in the Act in
addition to the civil remedies available for realisation of the
sum covered by the negotiable instrument. Dismissal of the
civil case for nonpayment of the court fee and otherwise than
on merit, only indicate a case of non prosecution of a civil
remedy available under the negotiable instrument. So far as
CRL.A.26/02 12
the case of part payment made by the accused, the suggestive
questions made to the complainant, when examined as PW1,
and the answers elicited from him are relied to contend that
such payment had been made towards the sum covered by the
cheque. Not even a single suggestion had been made to PW1
when he was in the box that any payment was made after
issuing of the cheque, which according to the accused was
given as a security. Admission of the complainant that he had
received Rs.15,000/- at the station is not sufficient to prove
that it was received as part payment of the sum covered by the
cheque, after that instrument was handed over. Further more,
the suggestive questions put by the accused would show that
part payment had been made after collecting documents or
receipts acknowledging payment. If at all, such part payments
had been made on collecting receipts, nothing prevented the
accused from producing those documents before the court.
Production of Ext.D1, the extract of the savings bank account
of the complainant to advance the case that the complainant at
no point of time, had a sum of Rs.80,000/- in his account, and
so much so, his case of advancing of Rs.80,000/- has to be
CRL.A.26/02 13
disbelieved, deserves to be noted in the backdrop of the
defence canvassed by the accused, when questioned under
Section 313 of the Cr.P.C. The maximum balance in the
account of the complainant during the relevant period as per
Ext.D1 was only Rs.60,000/-. But the accused has admitted, as
seen from his statement made when questioned under Section
313 of the Cr.P.C., the sum of Rs.70,000/- was received from
the complainant to give a visa to his son-in-law. So the
capacity of the complainant to raise sums in excess of the
amount shown in his savings bank account is not disputed,
but, admitted by the accused. So, the primary question that
required consideration under the facts presented in the case
was whether the accused had rebutted the presumption under
Section 139 of the N.I.Act demanding the complainant to
prove that the cheque had been issued towards discharge of a
debt. On the facts in the case, even on the admissions made
by the accused, the cheque is supported by consideration. To
prove the plea of discharge, as to the extent of the part
payment made, no material was placed before the court.
Admissions made by the accused, as under the defence case
CRL.A.26/02 14
canvassed, would show that the cheque had been issued
towards a debt or liability and it was supported by
consideration, whether it be in respect of a loan transaction or
in obtaining of a visa. No burden was cast upon the
complainant in the given facts of the case, to lead evidence on
the transaction under which the cheque was issued. The
learned Magistrate, in such circumstances went wrong in
casting the burden on the complainant to prove the
transaction to sustain the prosecution set up against the
accused.
6. The decision cited by the learned counsel for the
accused Joseph Sartho v. Gopinathan Nair (2008 (4) KLT
509) has no application to the facts of the case, where it has
not been established that any part payment had been received
by the complainant in respect of any sum covered by Ext.P1
cheque. The admission of the complainant that he received
Rs.15,000/- with an explanation that it was in respect of a
different transaction will not assist the accused so long as it
has not been established that the receipt of that amount was
CRL.A.26/02 15
after the issue of Ext.P1 cheque. Similarly, the decision
rendered by the apex court, namely, Krishna Janardhan
Bhat v. Dattatraya G. Hegde (2008 (1) KHC 410 (SC))
relied on by the counsel as regards the burden cast upon the
accused to rebut the presumption is also of no assistance to
the accused in the present case. Here the accused has
practically conceded by his own admission that the cheque
was supported by consideration and it has been issued in
discharge of a debt or liability. What he had contended is that
part payment had been made and the transaction under which
the cheque was issued was different from that canvassed by
the complainant in his complaint. Part payment of any sum
under the instrument was not established. The cheque was
issued in connection with a different transaction that
circumstance by itself, even if found proved, will not exonerate
him from his liability or relieve him from penalty when the
instrument issued by him was dishonoured due to insufficiency
of funds. The evidence of DW1 examined by the accused to
show that there was part payment need be taken note of only
for discarding it where the accused, from the suggestive
CRL.A.26/02 16
questions made to PW1, had contended that even part
payments were made only after collecting documents/receipts.
Further more, on close scrutiny it is seen that evidence of
DW1 is artificial and unreliable. So, this was a case where the
complainant had established by convincing evidence that
Ext.P1 cheque had been issued by the accused towards
discharge of a debt or liability, and it was dishonoured due to
insufficiency of funds in the account maintained by him.
Statutory compliance had been made for the prosecution of
the accused. The defence canvassed by the accused to escape
from the penal consequences is found to be meritless. So, in
reversal of the judgment of the acquittal, I hold the accused
guilty and convict him for the offences under Section 138 of
the N.I.Act.
7. Now on the question of sentence, having regard to the
proved facts and circumstances involved, I am of the view that
incarceration of the accused for a term is not called for, but,
the punishment to be meted out has to take note that the
cheque involved was issued 13 years ago, which, necessarily,
CRL.A.26/02 17
requires due weightage in fixing the compensation payable.
So much so, the accused is sentenced to undergo
imprisonment till the rising of the court, and to pay a
compensation of Rs.1 lakh under Section 357 (3) of the Cr.P.C.
within two months from the date of this judgment.
Compensation, if realised, shall be paid to the complainant. In
default of payment of compensation, the accused shall
undergo simple imprisonment for four months. The accused
shall appear and his sureties to produce her before the
Judicial First Class Magistrate Court, Payyannur, on 2nd June
2009, and the learned Magistrate shall execute the sentence
as directed.
Appeal is allowed.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.A.NO.26 OF 2002 (A)
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J U D G M E N T
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24th March, 2009