IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 705 of 2001()
1. ULLATTIL AGENCIES
... Petitioner
Vs
1. K.P.ABOOTTY
... Respondent
For Petitioner :SRI.R.RAMADAS
For Respondent :SRI.B.RAMAN PILLAI
The Hon'ble MR. Justice V.K.MOHANAN
Dated :26/11/2008
O R D E R
V.K.MOHANAN J
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Crl. Appeal No. 705 of 2001
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Dated this the 26th day of November, 2008.
J U D G M E N T
This appeal is at the instance of the complainant in a
prosecution for offence under Section 138 of the Negotiable
Instruments Act, since he is aggrieved by the judgment passed
by the Court below, acquitting the accused under Section 255(1)
of Code of Criminal Procedure.
2. The case of the complainant is that the accused
borrowed a sum of Rs. 2 lakhs during the month of June 1991
and towards the discharge of the said debt, the accused issued
Ext.P1 cheque dated 12.9.1994 for an amount of Rs. 4,29,279.70.
According to the complainant, when the cheque was presented in
the bank for encashment, the same was returned without
encashment due to insufficiency of funds in the account of the
accused. Consequently, the complainant claimed that he had
sent a notice intimating the accused regarding the dishonour of
the cheque and also demanding payment of the amount covered
by the cheque and no amount was paid and hence the
complainant approached the court below by filing the complaint
Crl. Appeal No. 705 of 2001 -2-
which was taken on file as C.C.No. 34 of 1995. When the accused
appeared and particulars of the offence were read over and
explained to him, he pleaded not guilty. Consequently, the
complainant was examined as PW1 and Exts.P1 to P9 were
marked on his side. The incriminating circumstances, which
brought during the prosecution evidence, were put to the
accused under Section 313 of the Code of Criminal Procedure
and he denied the same. Further, the case of the accused is that
the son of the accused availed a sum of Rs. 25,000/- and a blank
cheque was issued to the complainant and the same is misused
for the purpose of filing the present complaint. It is also the case
of the defence that besides Ext.P1 blank cheque several other
blank papers were got signed from the accused and also
obtained the title deed. To substantiate the case of the defence,
the accused himself was examined as DW1 and also marked
Exts.D1 to D6. On the basis of the rival pleadings, two issues
were framed by the Chief Judicial Magistrate Court for its
consideration and finally found that Ext.P1 cheque is not a
document supported by consideration and accordingly, found
that the accused was not guilty under Section 138 of the
Crl. Appeal No. 705 of 2001 -3-
Negotiable Instruments Act and he was acquitted under Section
255(1) of the Code of Criminal Procedure. It is the above finding
and order of acquittal, challenged in this appeal.
3. I have heard the learned counsel appearing for the
appellant as well as the respondents/accused.
4. The learned counsel for the appellant submitted that the
order of acquittal passed by the court below is without
considering the evidence on record and also not considered the
fact of the execution of Ext.P1 cheque. The learned counsel
pointed out that simply for the reason that there is difference in
the hand writing in Ext.P1 cheque and also for the reason that
the cheque in question was issued as a security, the court found
that there is no execution and held that the complainant failed to
establish the case against the accused. The learned counsel
pointed out that the cheque in question contained the signature
of the accused and therefore Ext.P1 cheque is executed and
issued by the accused, and the presumption under Section 139
is available in favour of the complainant. According to the
learned counsel, the trial court ignoring the above statutory
provision, carried away by the false defence taken by the
Crl. Appeal No. 705 of 2001 -4-
accused. Therefore the order of the trial court is liable to be set
aside.
5. On the other hand, the learned counsel appearing for
the respondents/accused submitted that the simple reasons that
the complainant is the holder of the cheque and the cheque
contained the signature of the accused are not sufficient to hold
that the cheque in question was executed and issued by the
accused connected with the transaction alleged by the
complainant. According to the learned counsel, the complainant
has miserably failed to show passing of consideration connected
with Ext.P1 cheque. The learned counsel pointed out that
complainant has also admitted the case of the accused with
respect to the earlier transaction between the complainant and
the son of the accused and the loan availed of by the son of the
accused from the complainant. According to the learned
counsel, Ext.P1 cheque was issued as a security connected with
the said transaction and it is the above cheque which has now
misused by the complainant, to file the present case. Thus,
according to the learned counsel, the defence had succeeded in
establishing a probable case which led to an acquittal since the
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same was accepted by the court below and on the basis of the
said case the court found that complainant had failed to establish
the case against the accused. The learned counsel submitted
that no ground is made out by the appellant to interfere with
such order of acquittal and therefore the appeal is liable to be
dismissed.
6. I have carefully considered the contentions advanced by
both the counsel and also perused the records and materials. The
Apex court in the decision in Krishna Janardhan Bhat v.
Dattatraya Hegde [2008(1) KLT 425 (SC)], had held that
Section 139 of the Act merely raises a presumption regarding
the second aspect of the matter and existence of a legally
recoverable debt is not a matter of presumption under Section
139 of the Act and it merely raised the presumption in favour of
the holder of a cheque that the same has been issued for
discharge of any debt or other liability. In another decision in
Johnson Scaria v. State of Kerala [2006(4) KLT 290], this
court held that the burden is always on the prosecution to prove
the offences against an indictee in all prosecutions and a
prosecution under Section 138 of the Negotiable Instruments Act
Crl. Appeal No. 705 of 2001 -6-
there is no exception to that general rule. It was also held that
execution and issue of the cheque have to be proved to draw the
presumption under Section 139 and Section 139 does not shift
the burden to prove execution and issue of cheque and admission
of the signature in cheque goes a long way to prove due
execution. It was also held that possession of the cheque by the
complainant similarly goes a long way to prove issue of the
cheque and the burden rests on the complainant to prove
execution and issue. But under section 114 of the Evidence Act
appropriate inferences and presumption can be drawn in each
case on the question of execution and issue of the cheque
depending on the evidence available and explanations offered.
7. Now let us examine the facts and circumstances
involved in this case in the light of the above decisions. The
specific case of the complainant is that the accused borrowed a
sum of Rs. 2 lakhs from the complainant and towards the
discharge of the said debt the accused issued Ext.P1 cheque.
Except Ext.P1 cheque, no other document is produced to show
the transaction and execution of the cheque. Even according to
PW1, the cheque in question was brought after filling the same.
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He does not know who executed Ext.P1 cheque. When the
complainant was examined he had said that the cheque was
issued one week prior to 12.9.1994 and it was given at their
institution. But it was not stated in the complaint. Except
Exts.P5 there is no other document to show the transaction
between the accused and the complainant. Ext.P5 is the only
computer print out of the complainant firm which alleged to be
the account of the accused. Besides the interested version of
PW1 and Ext.P1 cheque, there is no other material to show the
transaction.
8. It is in the above factual situation, the case of the
defence has to be examined. The complainant has already
admitted during his examination that the son of the accused had
availed a sum of Rs. 25,000/-. The said Rs.25,000/- was paid to
the son of the accused by way of cheque and the amount was not
paid in cash. It is the case of the defence that for the purpose of
receiving that amount, an account was newly opened in the
name of the son of the accused and that cheque was given to the
son of the accused, whereas with respect to the present
transaction, a substantial huge amount of Rs. 2 lakhs was paid,
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alleged to have paid to the accused in cash and not paid by way
of cheque and that too without any document. Of course
complainant has a case that at the time of realising this two
lakhs rupees, the accused deposited the title deed and also
issued a promissory note. But it is on record that the said
promissory note was returned to the accused when Ext.P1
cheque was given to the complainant. In this juncture the
learned counsel for the defence invited my attention to Ext.D2
notice. In D2 notice the amount is shown as Rs. 2,70,000/- as on
24.9.1992. When the complainant was cross examined with
regard to the issuance of Ext.D2 even after the promissory note
was returned, he gave a lame excuse and stated that it was
issued by mistake.
9. In paragraph 12 of the impugned judgment the trial
court observed after perusing Ext.P1 that signature in the
cheque is much older than the other writings in the cheque leaf
itself. According to the court, the signature was put by using ink
pen while the date, the name of the payee and the amount was
written using ball point pen. It was also observed that there can
be no doubt that the signature in the cheque was of much prior
Crl. Appeal No. 705 of 2001 -9-
period than the other writings. In paragraph 14 of the judgment
the trial court had observed that the case of the complainant is
that at the time of the transaction, promissory note was executed
and apart from that the title deed of the property of the wife of
the accused was also handed over. But it is stated that,
according to the accused, title deed was obtained when the
amount of Rs.25,000/- was advanced. The court observed that if
there was already a promissory note for Rs. 2 lakhs and that was
advanced to the accused in 1991, there was no necessity for
complainant to get another promissory note from the accused in
1992 as stated in Ext.D2. Thus, on the basis of the analysis of
the materials on record, the trial court found that all these
aspects were the fabrication that could have been made by PW1-
complainant. It was also observed by the trial court that
apparently, the promissory note was even now with the
complainant, as seen from Ext.D2 and even assuming that such a
promissory note was executed on 24.9.1992, it was not at all
possible that accused would have executed a cheque in respect
of the same amount in 1994 and also found that if promissory
note and cheque in the name of the accused and his son were
Crl. Appeal No. 705 of 2001 -10-
available to the complainant freely, this should be the result of
the fabrication out of the papers that were obtained as security
from them. In paragraph 16 the trial court found that the PW1
admitted that if amount above Rs.10,000/- was being advanced
by a financial institution, it should be by cheque or draft. But, in
the present case, an amount of Rs.2 lakhs was given to the
accused in cash. But the explanation of PW1 is, that was on the
basis of the request made by the accused. But in the case of the
loan amount of Rs. 25,000/- that was given by way of cheque.
The complainant is a firm involved in the money lending business
and there is no evidence to show the payment of Rs.2 lakhs and
this observation of the trial court appears to be correct. After
considering the evidence on merits, the trial court also found
that it is apparent that the account before 1992 were available
with the complainant and the case of the complaint that the same
were not available could not be accepted. Thus after the
elaborate consideration of the entire case of the evidence on
record, the trial court found that there was no possibility that
Ext.P1 cheque was supported by consideration. Trial court also
found that enough circumstances were brought out on behalf of
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the accused to rebut the presumption against the complainant
that the cheque was not supported by consideration. The Apex
court in the decision in Ghurey Lal v. State of U.P. reported
in [2008 (4) KLT SN 17 (Case No. 17) (SC)] had laid out
seven circumstances under which the appellate court can
interfere with an order of acquittal passed by the trial court. In
the said decision, the Apex court has held that appellate court
can interfere only when there is substantial and compelling
reasons. In the present case, I find that no such compelling on
substantial reasons to interfere with the order of acquittal
passed by the court below. Consequently the appeal fails.
In the result appeal is devoid of merit and accordingly the
same is dismissed.
V.K.MOHANAN, JUDGE
rhs
