{"id":183205,"date":"2008-12-12T00:00:00","date_gmt":"2008-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/e-j-george-vs-dr-rajan-jacob-on-12-december-2008"},"modified":"2015-02-07T05:49:09","modified_gmt":"2015-02-07T00:19:09","slug":"e-j-george-vs-dr-rajan-jacob-on-12-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/e-j-george-vs-dr-rajan-jacob-on-12-december-2008","title":{"rendered":"E.J.George vs Dr.Rajan Jacob on 12 December, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
E.J.George vs Dr.Rajan Jacob on 12 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1690 of 2004()\n\n\n1. E.J.GEORGE, S\/O.JOSEPH,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. DR.RAJAN JACOB, S\/O.JACOB,\n                       ...       Respondent\n\n2. STATE OF KERALA, REP. BY THE\n\n                For Petitioner  :SRI.T.V.GEORGE\n\n                For Respondent  :SRI.M.NARENDRA KUMAR\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :12\/12\/2008\n\n O R D E R\n                      V.K.MOHANAN, J.\n           ---------------------------------------------\n                 Crl.A.No. 1690 of 2004\n           ---------------------------------------------\n        Dated this the 12th day of December, 2008\n\n                       J U D G M E N T\n<\/pre>\n
            This appeal is filed at the instance of a<\/p>\n
complainant in a prosecution for the offence under Section<\/p>\n
138 of the Negotiable Instruments Act (for short ‘the<\/p>\n
N.I.Act’). As per the impugned judgment, the trial court<\/p>\n
acquitted the accused under Section 255(1) of the Code of<\/p>\n
Criminal Procedure and hence, this appeal.<\/p>\n
      2.    The case of the complainant is that the<\/p>\n
accused   borrowed an amount of Rs.2,00,000\/-               on<\/p>\n
13.1.2003    from    the    complainant      and towards   the<\/p>\n
discharge of the said liability,         on the same day of<\/p>\n
borrowal itself, a postdated cheque, bearing date as<\/p>\n
20.1.2003 for the aforesaid amount, was given. It is the<\/p>\n
further case of the complainant that when the said cheque<\/p>\n
was presented for encashment, the same was dishonoured<\/p>\n
for the reason “Payment stopped by the drawer” and<\/p>\n
hence, according to the complainant, a lawyer notice i.e.,<\/p>\n
Ext.P4 dated 31.1.2003 was issued to the accused<\/p>\n
intimating him regarding the dishonour of cheque and<\/p>\n
demanding to pay the amount covered by the cheque.<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                            :-2-:\n<\/p>\n
The said notice was received by the accused on 1.2.2003.<\/p>\n
The accused issued Ext.D1 reply to the above notice, denying<\/p>\n
the execution, issuance of cheque and also the transaction.<\/p>\n
As the amount was not paid, the complainant approached the<\/p>\n
court below by filing a complaint under Section 138 of the<\/p>\n
N.I.Act.   When the accused appeared, the particulars of the<\/p>\n
allegations contained in the complaint were read over and<\/p>\n
explained to him to which he pleaded not guilty which<\/p>\n
resulted in further trial during which PWs.1 and 2 were<\/p>\n
examined and EXts.P1 to P7 were marked from the side of the<\/p>\n
complainant.        When the   incriminating   circumstances,<\/p>\n
emerged during the evidence of the complainant, were put to<\/p>\n
the accused, he denied the same. It is the further case of the<\/p>\n
accused that the cheque in question viz., Ext.P1 was not<\/p>\n
executed and issued in favour of the complainant as claimed<\/p>\n
by him, but on the other hand, the same was entrusted with<\/p>\n
one P.E.Joseph from whom the accused availed of loan and<\/p>\n
the said cheque was given as a security. It is also the case of<\/p>\n
the accused that the said cheque was stolen by DW1 who is<\/p>\n
the son of said P.E.Joseph and entrusted the same with<\/p>\n
PW1\/the complainant based upon which the present case is<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                              :-3-:\n<\/p>\n
foisted against the accused. On the basis of the pleadings,<\/p>\n
rival contentions and materials on record, the court below<\/p>\n
considered three issues for its determination and finally found<\/p>\n
that Ext.P1 cheque was not issued by the accused to PW1\/the<\/p>\n
complainant for discharging his liability as alleged and<\/p>\n
accordingly, found that the accused is guilty under Section<\/p>\n
138 of the N.I.Act. Consequently, the accused is acquitted. It<\/p>\n
is the above finding and order of acquittal challenged in this<\/p>\n
appeal.\n<\/p>\n
       3.   I have heard learned counsel for the appellant as<\/p>\n
well as the contesting respondents.\n<\/p>\n
       4.   Learned counsel Mr.T.V.George appearing for the<\/p>\n
appellant vehemently argued that the complainant has<\/p>\n
established his case by adducing sufficient and cogent<\/p>\n
evidence regarding the transaction, execution and issuance of<\/p>\n
cheque.    Therefore, according to the learned counsel, the<\/p>\n
statutory presumption under Section 139 of the N.I.Act is<\/p>\n
available in favour of the complainant and the accused has<\/p>\n
miserably failed to rebut the presumption. Thus, according to<\/p>\n
the learned counsel, the order of acquittal passed by the<\/p>\n
court below is liable to be set aside. Learned counsel pointed<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                               :-4-:\n<\/p>\n
out that the defence has no consistent case and the falsity of<\/p>\n
the defence case itself is sufficient to interfere with the order<\/p>\n
of acquittal passed by the court below.\n<\/p>\n
       5.   Per contra, the learned counsel appearing for the<\/p>\n
first respondent\/accused submits that except the interested<\/p>\n
version of PW1\/the complainant, there is no statutory and<\/p>\n
acceptable evidence to attract the ingredients of Section 138<\/p>\n
of the N.I.Act. The learned counsel pointed out that merely<\/p>\n
on the basis of EXt.P1, it cannot be said that Section 138 of<\/p>\n
the N.I.Act is attracted against the accused. It is the further<\/p>\n
case of the counsel that even though the complainant has<\/p>\n
miserably failed to establish a prima facie case, so as to avail<\/p>\n
of the presumption under Section 139 of the N.I.Act, the<\/p>\n
accused has succeeded in establishing a probable case and<\/p>\n
thereby, rebutted the presumption which is otherwise<\/p>\n
available under Section 139 of the N.I.Act.           The learned<\/p>\n
counsel pointed out that the defence case is not put up for<\/p>\n
the first time, at the time of trial, but it can be traced back at<\/p>\n
least from the date of Ext.P7, which is bearing date as<\/p>\n
2.1.2003. Thus, the learned counsel submits that after having<\/p>\n
satisfied with the probability of the defence case, the trial<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                              :-5-:\n<\/p>\n
court came into a finding that the cheque in question was not<\/p>\n
issued by the accused in favour of the complainant on the<\/p>\n
basis of the alleged transaction and accordingly, the accused<\/p>\n
was acquitted and by such acquittal, the innocence of the<\/p>\n
accused is once again reinforced. Thus, it is submitted that<\/p>\n
while exercising the appellate jurisdiction,   such order of<\/p>\n
acquittal may not be interfered with by this Court.<\/p>\n
       6.   I have carefully considered the contentions of<\/p>\n
both counsel and also perused the materials and evidence on<\/p>\n
record.\n<\/p>\n
       7.   The case of the complainant is purely based upon<\/p>\n
Ext.P1 cheque. When PW1 was examined, he had stated that<\/p>\n
on demand of the accused, a sum of Rs.2,00,000\/- was given<\/p>\n
as loan on 13.1.2003 and he had received Ext.P1 cheque<\/p>\n
dated 20.1.2003. In his chief examination, he had stated that<\/p>\n
because of his friendship with the accused, the said amount<\/p>\n
was given. In cross examination, he had deposed that he is<\/p>\n
an owner of an autorickshaw and occasionally, he used to<\/p>\n
drive the auto. He had also stated that he is also having 50<\/p>\n
cents of property. To a suggestive question that he had no<\/p>\n
capacity to pay Rs.2,00,000\/-, he answered that it was not<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                              :-6-:\n<\/p>\n
correct. He said that near the house of the accused, he had<\/p>\n
property during the year 1989. It was also stated that the<\/p>\n
property was in the name of his wife. Though he had stated<\/p>\n
that there was frequent transaction with the accused, no<\/p>\n
details are given. In this juncture, it is relevant to note that<\/p>\n
the accused, who himself was examined as DW4, had stated<\/p>\n
that he is a Doctor by profession and he had Doctorate in<\/p>\n
Medicine. He had also stated that he was not having any<\/p>\n
prior acquaintance with the complainant and he is seeing the<\/p>\n
complainant for the first time in the court. It is his case that<\/p>\n
Ext.P1 cheque was entrusted with his friend one P.E.Joseph<\/p>\n
Paradiyil. He had also stated that in Ext.P1, he had put his<\/p>\n
signature only and he had preferred Ext.P7 wherein it is<\/p>\n
stated that the cheque in question was lost while he was<\/p>\n
travelling in a bus. According to him, the said P.E.Joseph told<\/p>\n
him that the cheque was missed on 2.1.2003. According to<\/p>\n
him, on the same day itself, he went to his bank and lodged<\/p>\n
EXt.P7 stop memo.      In the chief examination itself,    DW4<\/p>\n
stated that as told by the said P.E.Joseph, he went to the bank<\/p>\n
for the purpose of issuing the stop memo. It was also his case<\/p>\n
that the Secretary of the Bank advised him to give the stop<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                                :-7-:\n<\/p>\n
memo by giving some reason. According to him, actually it<\/p>\n
was not while travelling in the bus, the cheque was lost.      It<\/p>\n
was also his version that such an endorsement was made in<\/p>\n
Ext.P7 so as to book the person who brings the cheque and to<\/p>\n
entrust the said person with the Police. It is also his case that<\/p>\n
he was not aware as to who had taken the cheque at the time<\/p>\n
when he gave Ext.P7 memo. The accused had further stated<\/p>\n
that on getting EXt.P4 notice from the complainant, he had<\/p>\n
shown the same to the said P.E.Joseph and then, the said<\/p>\n
Joseph stated that the cheque in question would have been<\/p>\n
stolen by his son. The said fact has been, according to the<\/p>\n
accused, put in black and white by the said Joseph in fifty<\/p>\n
rupees stamp paper and the original of the same was<\/p>\n
entrusted with the Advocate for filing a criminal case. He had<\/p>\n
also stated that he had caused to send Ext.D1 notice to the<\/p>\n
counsel for the complainant.        He had also stated that he<\/p>\n
preferred a petition before the Kuravilangad Police, but there<\/p>\n
was no action.      It is also his case that he had preferred a<\/p>\n
private complaint before the Judicial First Class Magistrate<\/p>\n
Court, Palai against the complainant in the present case and<\/p>\n
against Mr.Saji Joseph, DW1 who is the son of the said Joseph.<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                               :-8-:\n<\/p>\n
At the time of trial of the present case, that private complaint<\/p>\n
was pending trial in the same court.\n<\/p>\n
       8.   In this juncture, it is relevant to consider the<\/p>\n
decision of the Apex Court reported in Krishna Janardhan<\/p>\n
Bhat v. Dattatraya Hegde<\/a> [2008(1) KLT 425(SC)]. In the<\/p>\n
above case, the Hon’ble Apex Court has held that existence of<\/p>\n
a legally recoverable debt is not a matter of presumption<\/p>\n
under Section 139 of the N.I.Act and it does not raise a<\/p>\n
presumption in regard to the existence of a debt also. From<\/p>\n
the above, it is clear that even if the holder of cheque is able<\/p>\n
to prove the execution and issuance of cheque, no<\/p>\n
presumption can be drawn regarding the existence of debt.<\/p>\n
In the present case, even going by the deposition of PW1, it<\/p>\n
can be seen that a substantial huge amount was alleged to<\/p>\n
have given as loan to the accused without any security and<\/p>\n
there is no other evidence to prove such a transaction. The<\/p>\n
evidences available on record, according to me, are not<\/p>\n
sufficient to show that the complainant has that much<\/p>\n
financial capacity to give such a huge amount as loan, that<\/p>\n
too without any claim or provision for interest. There is also<\/p>\n
dearth of evidence to show the relationship between the<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                              :-9-:\n<\/p>\n
complainant and the accused to part with such substantial<\/p>\n
huge amount without any security.\n<\/p>\n
       9.   Still then, this Court in the decision reported in<\/p>\n
Johnson Scaria v. State of Kerala<\/a> [2006(4) KLT 290] has<\/p>\n
held that admission of signature in a cheque goes a long way<\/p>\n
to prove due execution and possession of the cheque by the<\/p>\n
complainant similarly goes a long way to prove issue of the<\/p>\n
cheque.     The burden rests on the complainant to prove<\/p>\n
execution and issue. But, under Section 114 of the Evidence<\/p>\n
Act, appropriate inferences and presumptions can be drawn in<\/p>\n
each case on the question of execution and issue of the<\/p>\n
cheque     depending    on   the    evidence   available  and<\/p>\n
explanations offered.    In view of the above decisions, the<\/p>\n
court has to draw presumption and inferences based upon the<\/p>\n
materials on record and also on the basis of explanation<\/p>\n
offered. In the present case, as observed by the trial court,<\/p>\n
the evidence on the side of the complainant is not sufficient<\/p>\n
to show the execution, the issuance of the cheque and also<\/p>\n
the transaction. At the same time, the defence has a specific<\/p>\n
case as to how Ext.P1 cheque reached in the hands of the<\/p>\n
complainant. Such defence case is not for the first time taken<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                             :-10-:\n<\/p>\n
at the time of trial. As pointed out earlier, it can be traced<\/p>\n
from the date on which the accused issued Ext.P7 on the<\/p>\n
basis of the information he got from Sri.P.E.Joseph regarding<\/p>\n
the theft of Ext.P1 by his son. Of course, in Ext.P7, the reason<\/p>\n
given is that the cheque in question was lost while travelling<\/p>\n
in a bus. But, he had given a convincing explanation as to<\/p>\n
why such a reason was stated in Ext.P7. When Ext.D1 reply<\/p>\n
was sent to Ext.P4, the same defence was taken and he<\/p>\n
denied the execution and issuance of cheque in favour of the<\/p>\n
complainant. It is also borne out from records that even prior<\/p>\n
to the present complaint, he had caused to issue Ext.D6<\/p>\n
lawyer notice to DW1 and that DW1 denied the acceptance of<\/p>\n
Ext.D6 notice and thereby, it is proved that DW1 had issued<\/p>\n
Ext.D3 reply notice. Thereafter, the accused has also filed a<\/p>\n
private complaint before the Judicial First Class Magistrate<\/p>\n
Court, Palai, when the Police failed to take any action on his<\/p>\n
complaint before them.      Going by these materials and on<\/p>\n
appreciation of the same, I am of the view that the defence<\/p>\n
has made out a probable case.\n<\/p>\n
       10.  The Honourable Apex Court in the decision<\/p>\n
reported in Narayana Menon v. State of Kerala [2006(3)<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                              :-11-:\n<\/p>\n
KLT 404(SC)] has held that applying the said definitions of<\/p>\n
‘proved’ or ‘disproved’ to principle behind S.118(a) of the Act,<\/p>\n
the court shall presume a negotiable instrument to be for<\/p>\n
consideration unless and until after considering the matter<\/p>\n
before it, it either believes that the consideration does not<\/p>\n
exist or considers the non-existence of the consideration so<\/p>\n
probable that a prudent man ought, under the circumstances<\/p>\n
of the particular case, to act upon the supposition that the<\/p>\n
consideration does not exist. For rebutting such presumption,<\/p>\n
what needed is to raise a probable defence. Even for the said<\/p>\n
purpose, the evidence adduced on behalf of the complainant<\/p>\n
could be relied upon. The standard of proof evidently is pre-<\/p>\n
ponderance of probabilities. Inference of pre-ponderance of<\/p>\n
probabilities can be drawn not only from the materials on<\/p>\n
records, but also by reference to the circumstances upon<\/p>\n
which he relies. On application of the above dictum in the<\/p>\n
present case, I am of the view that the defence succeeded in<\/p>\n
establishing a probable case. Therefore, the trial court has<\/p>\n
correctly found that the complainant has failed to establish<\/p>\n
the execution and the transaction and according to the trial<\/p>\n
court, the defence version is more probable. It was on such a<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                             :-12-:\n<\/p>\n
conclusion, the trial court came into a conclusion that the<\/p>\n
accused is not guilty of the charge levelled against him. In<\/p>\n
the decision reported in Ghurey Lal v. State of U.P.<\/a> [2008<\/p>\n
(4) KLT SN 17 (C.No.17)(SC)], the Apex Court has elaborated<\/p>\n
seven circumstances under which the appellate court can<\/p>\n
interfere with an order of acquittal. In the said decision, the<\/p>\n
Honourable Supreme Court has held that the appellate court<\/p>\n
can interfere with the order of acquittal only when there are<\/p>\n
very substantial and compelling reasons.       I find no such<\/p>\n
substantial and compelling reasons to interfere with the order<\/p>\n
of acquittal passed by the trial court.     Consequently, the<\/p>\n
appeal fails.\n<\/p>\n
            In the result, there is no merit in the appeal and<\/p>\n
the appeal is dismissed.\n<\/p>\n<\/p>\n
                                          V.K.Mohanan,
\n                                                 Judge<\/p>\n
MBS\/<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                          :-13-:\n<\/p>\n<\/p>\n
                                         V.K.MOHANAN, JJ.\n<\/p>\n
                          ——————————————–<\/p>\n
                                   Crl.A.NO. OF 200<\/span>\n<\/p>\n
                          ——————————————–<\/p>\n
                                      J U D G M E N T<\/p>\n
Crl.A. NO.1690 of 2004<\/p>\n
                          :-14-:\n<\/p>\n<\/p>\n
                                DATED: -12-2008<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court E.J.George vs Dr.Rajan Jacob on 12 December, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1690 of 2004() 1. E.J.GEORGE, S\/O.JOSEPH, … Petitioner Vs 1. DR.RAJAN JACOB, S\/O.JACOB, … Respondent 2. STATE OF KERALA, REP. BY THE For Petitioner :SRI.T.V.GEORGE For Respondent :SRI.M.NARENDRA KUMAR The Hon’ble MR. Justice V.K.MOHANAN Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-183205","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nE.J.George vs Dr.Rajan Jacob on 12 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/e-j-george-vs-dr-rajan-jacob-on-12-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"E.J.George vs Dr.Rajan Jacob on 12 December, 2008 - 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