Ullattil Agencies vs K.P.Abootty on 26 November, 2008

Kerala High Court
Ullattil Agencies vs K.P.Abootty on 26 November, 2008
       

  

  

 
 
  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
             - - - - - - - - - - - - - - - - - - - - - - - -
       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

Crl. Appeal No. 705 of 2001 -5-

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.

Crl. Appeal No. 705 of 2001 -7-

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,

Crl. Appeal No. 705 of 2001 -8-

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

Crl. Appeal No. 705 of 2001 -11-

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

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