{"id":219605,"date":"2008-08-11T00:00:00","date_gmt":"2008-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-ajayakumar-vs-v-radhakrishnan-on-11-august-2008"},"modified":"2015-09-17T18:34:26","modified_gmt":"2015-09-17T13:04:26","slug":"d-ajayakumar-vs-v-radhakrishnan-on-11-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-ajayakumar-vs-v-radhakrishnan-on-11-august-2008","title":{"rendered":"D.Ajayakumar vs V.Radhakrishnan on 11 August, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
D.Ajayakumar vs V.Radhakrishnan on 11 August, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 3796 of 2006()\n\n\n1. D.AJAYAKUMAR, S\/O. DEVARAJAN POTTI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. V.RADHAKRISHNAN,\n                       ...       Respondent\n\n2. STATE OF KERALA, REPRESENTED BY\n\n                For Petitioner  :SRI.S.SREEKUMAR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :11\/08\/2008\n\n O R D E R\n                          V. RAMKUMAR, J.\n               * * * * * * * * * * * * * * * * * *\n                   Crl. R.P. No. 3796 of 2006\n               * * * * * * * * * * * * * * * * * *\n                        Dated: 11-08-2008\n\n\n                                ORDER\n<\/pre>\n
      In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C.<\/p>\n
the petitioner who is the accused in C.C. No.232 of 1998 on the file of<\/p>\n
the Judl. fist Class Magistrate Court-I, Kollam which was a prosecution<\/p>\n
under Sec. 138 of the Negotiable Instruments Act, 1881 (N.I. Act for<\/p>\n
short) in respect of a cheque for a sum of Rs.5,00,000\/- challenges<\/p>\n
the conviction      entered and the sentence passed against him<\/p>\n
concurrently     by the lower appellate court for the aforementioned<\/p>\n
offence.\n<\/p>\n
      2.     The case of the prosecution can be         summarised as<\/p>\n
follows:\n<\/p>\n
      Pursuant to the acquaintance          which the accused had with<\/p>\n
P.W.1 the accused      borrowed a sum of Rs. 5,00,000\/-       from the<\/p>\n
complainant from the residence of the        complainant on 28-10-1997<\/p>\n
and issued Ext.P1 cheque in discharge of the said liability. When the<\/p>\n
cheque was presented before the drawee brank (the Pannivizha<\/p>\n
Service Co-operative Bank Limited branch), the same was dishonoured<\/p>\n
on the ground that funds were insufficient and also on the ground that<\/p>\n
Crl. R.P. No. 3796 of 2006         -:2:-<\/span><\/p>\n
the payment was stopped by the accused. To the statutory notice by<\/p>\n
the complainant no reply was sent       by the accused nor any payment<\/p>\n
made. Hence, the complaint.\n<\/p>\n
       3.     On the side of the complainant he examined himself as<\/p>\n
P.W.1 and got marked 8 documents as Exts.P1 to P8.<\/p>\n
       4.     After the close of the prosecution evidence, the revision<\/p>\n
petitioner\/accused was questioned under Sec. 313 with regard to the<\/p>\n
incriminating circumstances appearing against him in the evidence for<\/p>\n
the prosecution. He denied those circumstances and maintained his<\/p>\n
innocence. He had the following to submit before court:-<\/p>\n
       He does not have any acquaintance with the complainant. He<\/p>\n
was seeing the complainant for the first time in court. He had lost a<\/p>\n
signed blank cheque       along with his purse    during the course of<\/p>\n
journey. The complainant had somehow or other got possession of<\/p>\n
the cheque leaf and converted the same into Ext.P1 cheque. He had<\/p>\n
informed the drawee bank regarding the loss of the cheque. He is<\/p>\n
innocent in the case.\n<\/p>\n
       5.     When called upon to enter on his defence the revision<\/p>\n
petitioner\/accused examined four witnesses as DWs 1 to 4 and got<\/p>\n
marked three documents as Exts.D1 to D3. The learned Magistrate,<\/p>\n
after trial, as per judgment dated 14-1-2002 found the revision<\/p>\n
Crl. R.P. No. 3796 of 2006        -:3:-<\/span><\/p>\n
petitioner guilty of the offence and sentenced him to simple<\/p>\n
imprisonment for one month and directed him to pay Rs. 5,50,000\/- as<\/p>\n
compensation under Sec. 357 (3) Cr.P.C. On appeal preferred by him<\/p>\n
as Crl.Appeal No.25 of 2002 before the Sessions Court, Kollam, the<\/p>\n
learned Addl. District & Sessions Judge (Adhoc-II), Kollam as per<\/p>\n
judgment dated 24-3-2006 confirmed the conviction but modified the<\/p>\n
sentence directing him to undergo simple imprisonment for six months<\/p>\n
and to pay the compensation of Rs. 5,50,000\/- under Sec. 357 (3)<\/p>\n
Cr.P.C. with a default sentence      of simple imprisonment for three<\/p>\n
months. Hence this Revision.\n<\/p>\n
       6.     I heard the learned counsel appearing for the revision<\/p>\n
petitioner\/accused as well as the learned counsel appearing for the<\/p>\n
first respondent\/complainant.\n<\/p>\n
       7.     On behalf of the complainant the following submissions<\/p>\n
were made:-\n<\/p>\n
       On the right hand top of Ext.P7 ledger extract it is shown that a<\/p>\n
cheque book containing leaves from 2811 to 2820 was issued to the<\/p>\n
accused the holder of S.B. Account No. 1072 on 20-12-1994. The<\/p>\n
number of Ext. P1 cheque is 2815. Ext.P7 ledger extract shows that<\/p>\n
Cheque No. 2811 was returned on 14-7-1995 and Ext.P1 cheque was<\/p>\n
returned on 29-7-1997.       Ext.D2 letter dated 22-10-1997 is a letter<\/p>\n
Crl. R.P. No. 3796 of 2006       -:4:-<\/span><\/p>\n
claimed     by the accused to  have been given to the drawee bank<\/p>\n
informing the bank that a signed blank cheque along with his purse<\/p>\n
was lost and asking the bank not to make any payment against the<\/p>\n
said signed blank cheque.      This is a document which has been<\/p>\n
prepared by the accused in collusion with         the bank manager<\/p>\n
examined as D.W.1. D.W.1 had to admit that Ext.D2 letter does not<\/p>\n
contain any endorsement to the effect that it was received by the bank<\/p>\n
on 22-10-1997. P.W.1,      the complainant is a building contractor and<\/p>\n
he was having a sum of Rs. 5,00,000\/- at his residence for the past<\/p>\n
three days prior to 28-10-1997.       Going by the testimony of P.W.1<\/p>\n
the accused came to his residence on 28-10-1997 and asked for Rs.<\/p>\n
5,00,000\/- which P.w.1 gave him and towards the discharge of the<\/p>\n
said liability Ext.P1 cheque was given on the same day. In Ext.P1<\/p>\n
cheque the payee is none other than P.W.1, the complainant. The<\/p>\n
stand taken by the accused is one of total denial. But the accused<\/p>\n
admits that Ext.P1 cheque is one pertaining to Account No. 1072<\/p>\n
belonging to him. The only explanation which the accused would offer<\/p>\n
for the custody of the cheque leaf with P.W.1 the complainant     is by<\/p>\n
way of theft. But he has admitted his signature in Ext.P1 cheque. If<\/p>\n
so, the burden was on the accused to substantiate his defence in view<\/p>\n
of the decision of the Apex    Court in   K. Bhaskara v. Sankaran<\/p>\n
Crl. R.P. No. 3796 of 2006        -:5:-<\/span><\/p>\n
Vaidhyan Balan – AIR 1997 SC 3762. According to the accused,<\/p>\n
Ext.P1 cheque was given by him as a blank signed cheque by way of<\/p>\n
security to one Gopikuttan with whom he had prior transaction.<\/p>\n
After the said transaction was over     the blank signed cheque was<\/p>\n
returned by the said Gopikuttan to the accused and it was the said<\/p>\n
blank signed cheque       which was allegedly lost by him in transit.<\/p>\n
Eventhough      the accused   cited the said Gopikuttan as a defence<\/p>\n
witness and eventhough the said Gopikuttan was present in court, for<\/p>\n
reasons best known to the accused he did not examine the said<\/p>\n
Gopikuttan.       D.W.2 is the head constable who registered Ext.D3<\/p>\n
F.I.R. on 19-4-2000 against P.W.1 and Gopikuttan for allegedly<\/p>\n
threatening the accused pursuant to the earlier transaction which the<\/p>\n
accused had with Gopikuttan. While D.W.3 who allegedly witnessed<\/p>\n
the settlement of the dispute between the accused and Gopikuttan<\/p>\n
would say that the settlement was before the Dy.S.P. , the very same<\/p>\n
person would say at one place        that the settlement  was in the<\/p>\n
presence of Sreelekha , the Superintendent      of Police.     Such a<\/p>\n
witness could not have been believed for a moment.       In preference<\/p>\n
to this defence witness the courts below have relied on the testimony<\/p>\n
of P.W.1 to uphold the borrowal alleged by him.     After the decision<\/p>\n
of the Apex Court in M\/s. Modi Cement Ltd. v. Sri. Kuchil Kumar<\/p>\n
Crl. R.P. No.<\/span><\/a> 3796 of 2006         -:6:-<\/p>\n
Nandi – 1998 (1) Crime 268 even stoppage           of payment amount<\/p>\n
to offence punishable under Sec. 138 of the N.I. Act. Such being the<\/p>\n
position, the decision rendered by the courts below do not call for<\/p>\n
any interference.\n<\/p>\n
       8.     I am afraid that I cannot agree with the above<\/p>\n
submissions. It is now well settled that notwithstanding the statutory<\/p>\n
presumptions under Sec. 118 (a) and 139 of the N.I. Act, it is for the<\/p>\n
complainant to establish his case beyond doubt, particularly, in a case<\/p>\n
where the defence is able to create some doubt in the mind of the<\/p>\n
court regarding the transaction in question. After examining the oral<\/p>\n
and documentary         evidence in the case, I have no hesitation to<\/p>\n
conclude that the complainant has failed to establish his case so as<\/p>\n
to justify    the conviction   recorded against the revision petitioner.<\/p>\n
Going by the testimony of P.W.1 the complainant, the accused went to<\/p>\n
his house on 28-10-1997 and requested for a loan of Rs. 5 lakhs.<\/p>\n
Eventhough P.W.1 would claim to be a building contractor and would<\/p>\n
say that he started construction of buildings since 1965, no scrap of<\/p>\n
paper was produced by him in support of the same. He was aged 53<\/p>\n
when he was examined before court on 24-2-2001. If he had started<\/p>\n
constructing buildings since 1965,      then he would have been aged<\/p>\n
only 17 years in the year 1965. He unwittingly admitted that he is a<\/p>\n
Crl. R.P. No. 3796 of 2006          -:7:-<\/span><\/p>\n
construction worker.      He admitted that eventhough he has a bank<\/p>\n
account, he does not put amounts in his bank, that he is not an<\/p>\n
income tax payee, that there are no properties in his name, that he<\/p>\n
has no telephone or water connection in his house.          His income as<\/p>\n
shown     in his ration card is Rs. 1,500\/- per year.    According to him<\/p>\n
a sum of Rs. 5,00,000\/- was entrusted with him for constructing a<\/p>\n
building.    He would have it that he was having the said account at<\/p>\n
his residence for 2-3- days.      It is interesting to note that he has no<\/p>\n
case that the accused was aware of P.W.1 having with him a sum of<\/p>\n
Rs. 5,00,000\/- in his house. If his version is     disbelieved then it was<\/p>\n
in the morning of 28-10-1997 that the accused went to his house and<\/p>\n
asked for a loan of Rs. 5,00,000. P.W.1 would say that he gave the<\/p>\n
amount asked for and the accused gave Ext.P1 cheque              dated 28-<\/p>\n
=10-1997 in return. But strangely enough the name of the payee as<\/p>\n
well as the amount in words are typewritten in Ext.P1.<\/p>\n
       9.     As against the above version of P.W.1 the specific case of<\/p>\n
the accused right from Ext.D1 reply to the statutory notice and which<\/p>\n
was marked through P.W.1 is that the complainant is a total stranger<\/p>\n
to him, that he had no transaction at all with the complainant, that<\/p>\n
he had not issued the cheque in question to the complainant and that<\/p>\n
he had lost custody of a signed blank cheque while he was travelling<\/p>\n
Crl. R.P. No. 3796 of 2006            -:8:-<\/span><\/p>\n
and the above fact was promptly communicated to his bank on 22-10-<\/p>\n
1997 itself. DW1, the Secretary of the drawee bank has deposed that<\/p>\n
Ext. D2 letter dated 22-10-1997 from the accused informing that he<\/p>\n
lost a signed blank cheque along with his purse and requesting the<\/p>\n
bank to stop payment in case the said cheque was presented for<\/p>\n
collection was received in the bank on 22-10-1997.           It is true that<\/p>\n
Ext. D2 letter does not contain any endorsement on 22-10-1997 of<\/p>\n
having received the letter on that date itself. But it must remembered<\/p>\n
that the bank in question is a Service Co-operative Bank and not a<\/p>\n
Government Department where any letter or representation received<\/p>\n
is taken on file with initials and date of the officer receiving the same.<\/p>\n
Ext.P7 ledger contains an endorsement regarding the receipt of Ext.D2<\/p>\n
letter containing       the request of      the accused countermanding<\/p>\n
payment. Ext.P1 cheque was admittedly dishonored on the following<\/p>\n
grounds:\n<\/p>\n
                  “i) funds insufficient\n<\/p><\/blockquote>\n
                  ii) payment stopped”<\/p><\/blockquote>\n
         It is true that the accused raised a contention that Ext.P1 was<\/p>\n
originally issued by him as a signed blank cheque to one Gopikuttan,<\/p>\n
when         he entered into a transaction with Gopikuttan and that<\/p>\n
consequent on the closure of that transaction the said Gopikuttan<\/p>\n
returned the signed blank cheque to P.W.1 the complainant that the<\/p>\n
Crl. R.P. No. 3796 of 2006       -:9:-<\/span><\/p>\n
the accused while travelling lost his purse together with the signed<\/p>\n
blank cheque on 22-10-1997 and that         he promptly informed the<\/p>\n
drawee bank about the loss of the cheque on the same day as<\/p>\n
revealed by Ext.D2. Both the courts below blamed the accused for<\/p>\n
not examining Gopikuttan and for not producing the          documents<\/p>\n
pertaining to the earlier transaction which he had with Gopikuttan.<\/p>\n
The question of casting the burden on the shoulders of the accused<\/p>\n
and his examining Gopikuttan and producing documents in support of<\/p>\n
the earlier transaction would arise only if the complainant had, prima<\/p>\n
facie, established the loan transaction set up by him.       When as<\/p>\n
indicated above the transaction set up by the complainant in the<\/p>\n
complaint itself is found to be improbable, it was for the complainant<\/p>\n
to establish his case beyond reasonable doubt.             instead of<\/p>\n
substantiating his case he cannot indulge in picking holes      in the<\/p>\n
defence. D.W.3 the person examined to prove the settlement of the<\/p>\n
transaction between the accused and Gopikuttan has deposed that<\/p>\n
the said transaction was settled before the police.    Whether it was<\/p>\n
before the Dy.S.P. or before the Superintendent of Police, the fact<\/p>\n
remains that       the accused had adduced evidence to show that<\/p>\n
pursuant to the settlement      between himself and Gopikuttan the<\/p>\n
signed blank cheque which is entrusted with Gopikuttan was returned<\/p>\n
Crl. R.P. No. 3796 of 2006        -:10:-<\/span><\/p>\n
by Gopikuttan and it was the said signed blank cheque which was lost<\/p>\n
while undertaking a travel on 22-7-1997. Going by the dictum laid<\/p>\n
down by the Apex Court in       M.S. Narayana Menon alias Mani v.<\/p>\n
State of Kerala and Another<\/a> – 2006 (6) SCC 39 it has been<\/p>\n
settled that the accused in a prosecution under Sec. 138 of the N.I.<\/p>\n
Act need only           rebut the presumption by the yardstick of<\/p>\n
preponderance of probabilities. The burden on the accused in this<\/p>\n
regard is not as high as that of the prosecution. He need not totally<\/p>\n
disprove the prosecution case. The accused need not even mount the<\/p>\n
witness box to substantiate his case. He can rely on the evidence of<\/p>\n
the complainant himself to demolish the case of the complainant.<\/p>\n
Apart from Ext.D2 stop memo, the evidence of DW1 the bank<\/p>\n
manager was sufficient to rebut the presumption.     That apart, the<\/p>\n
accused had adduced further evidence as to show he lost possession<\/p>\n
of the signed blank cheque which was in his custody. The factum of<\/p>\n
theft was duly intimated to the drawee bank.            Under these<\/p>\n
circumstances, the courts below were not justified in ignoring these<\/p>\n
vital aspects and recording the conviction against the revision<\/p>\n
petitioner. The conviction recorded by the courts below overlooking<\/p>\n
the above       vital aspects cannot be sustained and is accordingly<\/p>\n
dislodged.     Since the complainant has   not established  his case<\/p>\n
Crl. R.P. No. 3796 of 2006         -:11:-<\/span><\/p>\n
beyond reasonable doubt, the revision petitioner is certainly entitled to<\/p>\n
the benefit of such doubt available to him in law. In the result this<\/p>\n
revision petition     is allowed and the conviction   entered and the<\/p>\n
sentence passed against the revision petitioner are set aside.<\/p>\n
Amounts, if any, deposited before the trail court shall be refunded to<\/p>\n
the revision petitioner.\n<\/p>\n<\/p>\n
                                            V.Ramkumar, Judge.\n<\/p>\n
ani.\n<\/p>\n
Crl. R.P. No. 3796 of 2006    -:12:-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court D.Ajayakumar vs V.Radhakrishnan on 11 August, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 3796 of 2006() 1. D.AJAYAKUMAR, S\/O. DEVARAJAN POTTI, … Petitioner Vs 1. V.RADHAKRISHNAN, … Respondent 2. STATE OF KERALA, REPRESENTED BY For Petitioner :SRI.S.SREEKUMAR For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice V.RAMKUMAR Dated :11\/08\/2008 O […]<\/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-219605","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nD.Ajayakumar vs V.Radhakrishnan on 11 August, 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\/d-ajayakumar-vs-v-radhakrishnan-on-11-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"D.Ajayakumar vs V.Radhakrishnan on 11 August, 2008 - 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