{"id":245223,"date":"2008-11-26T00:00:00","date_gmt":"2008-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ullattil-agencies-vs-k-p-abootty-on-26-november-2008"},"modified":"2016-12-10T22:23:54","modified_gmt":"2016-12-10T16:53:54","slug":"ullattil-agencies-vs-k-p-abootty-on-26-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ullattil-agencies-vs-k-p-abootty-on-26-november-2008","title":{"rendered":"Ullattil Agencies vs K.P.Abootty on 26 November, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ullattil Agencies vs K.P.Abootty on 26 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 705 of 2001()\n\n\n\n1. ULLATTIL AGENCIES\n                      ...  Petitioner\n\n                        Vs\n\n1. K.P.ABOOTTY\n                       ...       Respondent\n\n                For Petitioner  :SRI.R.RAMADAS\n\n                For Respondent  :SRI.B.RAMAN PILLAI\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :26\/11\/2008\n\n O R D E R\n                        V.K.MOHANAN J\n            - - - - - - - - - - - - - - - - - - - - - - - -\n                Crl. Appeal No. 705 of 2001\n             - - - - - - - - - - - - - - - - - - - - - - - -\n       Dated this the 26th day of November, 2008.\n\n                        J U D G M E N T\n<\/pre>\n
     This appeal is at the instance of the complainant in a<\/p>\n
prosecution for offence under Section 138 of the Negotiable<\/p>\n
Instruments Act, since he is aggrieved by the judgment passed<\/p>\n
by the Court below, acquitting the accused under Section 255(1)<\/p>\n
of Code of Criminal Procedure.\n<\/p>\n
      2.   The case of the complainant is that the accused<\/p>\n
borrowed a sum of Rs. 2 lakhs during the month of June 1991<\/p>\n
and towards the discharge of the said debt, the accused issued<\/p>\n
Ext.P1 cheque dated 12.9.1994 for an amount of Rs. 4,29,279.70.<\/p>\n
According to the complainant, when the cheque was presented in<\/p>\n
the bank for encashment, the same was returned without<\/p>\n
encashment due to insufficiency of funds in the account of the<\/p>\n
accused.   Consequently, the complainant claimed that he had<\/p>\n
sent a notice intimating the accused regarding the dishonour of<\/p>\n
the cheque and also demanding payment of the amount covered<\/p>\n
by the cheque and no amount was paid and hence the<\/p>\n
complainant approached the court below by filing the complaint<\/p>\n
Crl. Appeal No. 705 of 2001       -2-<\/span><\/p>\n
which was taken on file as C.C.No. 34 of 1995. When the accused<\/p>\n
appeared and particulars of the offence were read over and<\/p>\n
explained to him, he pleaded not guilty.        Consequently, the<\/p>\n
complainant was examined as PW1 and Exts.P1 to P9 were<\/p>\n
marked on his side.        The incriminating circumstances, which<\/p>\n
brought during the prosecution evidence, were put to the<\/p>\n
accused under Section 313 of the Code of Criminal Procedure<\/p>\n
and he denied the same. Further, the case of the accused is that<\/p>\n
the son of the accused availed a sum of Rs. 25,000\/- and a blank<\/p>\n
cheque was issued to the complainant and the same is misused<\/p>\n
for the purpose of filing the present complaint. It is also the case<\/p>\n
of the defence that besides Ext.P1 blank cheque several other<\/p>\n
blank papers were got signed from the accused and also<\/p>\n
obtained the title deed. To substantiate the case of the defence,<\/p>\n
the accused himself was examined as DW1 and also marked<\/p>\n
Exts.D1 to D6. On the basis of the rival pleadings, two issues<\/p>\n
were framed by the Chief Judicial Magistrate Court for its<\/p>\n
consideration and finally found that Ext.P1 cheque is not a<\/p>\n
document supported by consideration and accordingly, found<\/p>\n
that the accused was not guilty under Section 138 of the<\/p>\n
Crl. Appeal No. 705 of 2001     -3-<\/span><\/p>\n
Negotiable Instruments Act and he was acquitted under Section<\/p>\n
255(1) of the Code of Criminal Procedure. It is the above finding<\/p>\n
and order of acquittal, challenged in this appeal.<\/p>\n
      3.   I have heard the learned counsel appearing for the<\/p>\n
appellant as well as the respondents\/accused.<\/p>\n
      4. The learned counsel for the appellant submitted that the<\/p>\n
order of acquittal passed by the court below is without<\/p>\n
considering the evidence on record and also not considered the<\/p>\n
fact of the execution of Ext.P1 cheque. The learned counsel<\/p>\n
pointed out that simply for the reason that there is difference in<\/p>\n
the hand writing in Ext.P1 cheque and also for the reason that<\/p>\n
the cheque in question was issued as a security, the court found<\/p>\n
that there is no execution and held that the complainant failed to<\/p>\n
establish the case against the accused. The learned counsel<\/p>\n
pointed out that the cheque in question contained the signature<\/p>\n
of the accused and therefore Ext.P1 cheque is executed and<\/p>\n
issued by the accused, and the presumption under Section 139<\/p>\n
is available in favour of the complainant.      According to the<\/p>\n
learned counsel, the trial court ignoring the above statutory<\/p>\n
provision, carried away by the false defence taken by the<\/p>\n
Crl. Appeal No. 705 of 2001      -4-<\/span><\/p>\n
accused. Therefore the order of the trial court is liable to be set<\/p>\n
aside.\n<\/p>\n
      5. On the other hand, the learned counsel appearing for<\/p>\n
the respondents\/accused submitted that the simple reasons that<\/p>\n
the complainant is the holder of the cheque and the cheque<\/p>\n
contained the signature of the accused are not sufficient to hold<\/p>\n
that the cheque in question was executed and issued by the<\/p>\n
accused connected with the transaction alleged by the<\/p>\n
complainant. According to the learned counsel, the complainant<\/p>\n
has miserably failed to show passing of consideration connected<\/p>\n
with Ext.P1 cheque.        The learned counsel pointed out that<\/p>\n
complainant has also admitted the case of the accused with<\/p>\n
respect to the earlier transaction between the complainant and<\/p>\n
the son of the accused and the loan availed of by the son of the<\/p>\n
accused from the complainant.         According to the learned<\/p>\n
counsel, Ext.P1 cheque was issued as a security connected with<\/p>\n
the said transaction and it is the above cheque which has now<\/p>\n
misused by the complainant, to file the present case.        Thus,<\/p>\n
according to the learned counsel, the defence had succeeded in<\/p>\n
establishing a probable case which led to an acquittal since the<\/p>\n
Crl. Appeal No. 705 of 2001     -5-<\/span><\/p>\n
same was accepted by the court below and on the basis of the<\/p>\n
said case the court found that complainant had failed to establish<\/p>\n
the case against the accused. The learned counsel submitted<\/p>\n
that no ground is made out by the appellant to interfere with<\/p>\n
such order of acquittal and therefore the appeal is liable to be<\/p>\n
dismissed.\n<\/p>\n
      6. I have carefully considered the contentions advanced by<\/p>\n
both the counsel and also perused the records and materials. The<\/p>\n
Apex court in the decision in Krishna Janardhan Bhat v.<\/p>\n
Dattatraya Hegde<\/a> [2008(1) KLT 425 (SC)], had held that<\/p>\n
Section 139 of the Act merely raises a presumption regarding<\/p>\n
the second aspect of the matter and existence of a legally<\/p>\n
recoverable debt is not a matter of presumption under Section<\/p>\n
139 of the Act and it merely raised the presumption in favour of<\/p>\n
the holder of a cheque that the same has been issued for<\/p>\n
discharge of any debt or other liability. In another decision in<\/p>\n
Johnson Scaria v. State of Kerala<\/a> [2006(4) KLT 290], this<\/p>\n
court held that the burden is always on the prosecution to prove<\/p>\n
the offences against an indictee in all prosecutions and a<\/p>\n
prosecution under Section 138 of the Negotiable Instruments Act<\/p>\n
Crl. Appeal No. 705 of 2001    -6-<\/span><\/p>\n
there is no exception to that general rule. It was also held that<\/p>\n
execution and issue of the cheque have to be proved to draw the<\/p>\n
presumption under Section 139 and Section 139 does not shift<\/p>\n
the burden to prove execution and issue of cheque and admission<\/p>\n
of the signature in cheque goes a long way to prove due<\/p>\n
execution. It was also held that possession of the cheque by the<\/p>\n
complainant similarly goes a long way to prove issue of the<\/p>\n
cheque and the burden rests on the complainant to prove<\/p>\n
execution and issue. But under section 114 of the Evidence Act<\/p>\n
appropriate inferences and presumption can be drawn in each<\/p>\n
case on the question of execution and issue of the cheque<\/p>\n
depending on the evidence available and explanations offered.<\/p>\n
      7.    Now let us examine the facts and circumstances<\/p>\n
involved in this case in the light of the above decisions. The<\/p>\n
specific case of the complainant is that the accused borrowed a<\/p>\n
sum of Rs. 2 lakhs from the complainant and towards the<\/p>\n
discharge of the said debt the accused issued Ext.P1 cheque.<\/p>\n
Except Ext.P1 cheque, no other document is produced to show<\/p>\n
the transaction and execution of the cheque. Even according to<\/p>\n
PW1, the cheque in question was brought after filling the same.<\/p>\n
Crl. Appeal No. 705 of 2001      -7-<\/span><\/p>\n
He does not know who executed Ext.P1 cheque.             When the<\/p>\n
complainant was examined he had said that the cheque was<\/p>\n
issued one week prior to 12.9.1994 and it was given at their<\/p>\n
institution.    But it was not stated in the complaint.     Except<\/p>\n
Exts.P5 there is no other document to show the transaction<\/p>\n
between the accused and the complainant. Ext.P5 is the only<\/p>\n
computer print out of the complainant firm which alleged to be<\/p>\n
the account of the accused. Besides the interested version of<\/p>\n
PW1 and Ext.P1 cheque, there is no other material to show the<\/p>\n
transaction.\n<\/p>\n
      8. It is in the above factual situation, the case of the<\/p>\n
defence has to be examined.         The complainant has already<\/p>\n
admitted during his examination that the son of the accused had<\/p>\n
availed a sum of Rs. 25,000\/-. The said Rs.25,000\/- was paid to<\/p>\n
the son of the accused by way of cheque and the amount was not<\/p>\n
paid in cash. It is the case of the defence that for the purpose of<\/p>\n
receiving that amount, an account was newly opened in the<\/p>\n
name of the son of the accused and that cheque was given to the<\/p>\n
son of the accused,        whereas with respect to the present<\/p>\n
transaction, a substantial huge amount of Rs. 2 lakhs was paid,<\/p>\n
Crl. Appeal No. 705 of 2001      -8-<\/span><\/p>\n
alleged to have paid to the accused in cash and not paid by way<\/p>\n
of cheque and that too without any document.           Of course<\/p>\n
complainant has a case that at the time of realising this two<\/p>\n
lakhs rupees, the accused deposited the title deed and also<\/p>\n
issued a promissory note. But it is on record that the said<\/p>\n
promissory note was returned to the accused when Ext.P1<\/p>\n
cheque was given to the complainant. In this juncture the<\/p>\n
learned counsel for the defence invited my attention to Ext.D2<\/p>\n
notice. In D2 notice the amount is shown as Rs. 2,70,000\/- as on<\/p>\n
24.9.1992.     When the complainant was cross examined with<\/p>\n
regard to the issuance of Ext.D2 even after the promissory note<\/p>\n
was returned, he gave a lame excuse and stated that it was<\/p>\n
issued by mistake.\n<\/p>\n
      9. In paragraph 12 of the impugned judgment the trial<\/p>\n
court observed after perusing Ext.P1 that signature in the<\/p>\n
cheque is much older than the other writings in the cheque leaf<\/p>\n
itself. According to the court, the signature was put by using ink<\/p>\n
pen while the date, the name of the payee and the amount was<\/p>\n
written using ball point pen. It was also observed that there can<\/p>\n
be no doubt that the signature in the cheque was of much prior<\/p>\n
Crl. Appeal No. 705 of 2001      -9-<\/span><\/p>\n
period than the other writings. In paragraph 14 of the judgment<\/p>\n
the trial court had observed that the case of the complainant is<\/p>\n
that at the time of the transaction, promissory note was executed<\/p>\n
and apart from that the title deed of the property of the wife of<\/p>\n
the accused was also handed over.          But it is stated that,<\/p>\n
according to the accused, title deed was obtained when the<\/p>\n
amount of Rs.25,000\/- was advanced. The court observed that if<\/p>\n
there was already a promissory note for Rs. 2 lakhs and that was<\/p>\n
advanced to the accused in 1991, there was no necessity for<\/p>\n
complainant to get another promissory note from the accused in<\/p>\n
1992 as stated in Ext.D2. Thus, on the basis of the analysis of<\/p>\n
the materials on record, the trial court found that all these<\/p>\n
aspects were the fabrication that could have been made by PW1-<\/p>\n
complainant.      It was also observed by the trial court that<\/p>\n
apparently, the promissory note was even now with the<\/p>\n
complainant, as seen from Ext.D2 and even assuming that such a<\/p>\n
promissory note was executed on 24.9.1992, it was not at all<\/p>\n
possible that accused would have executed a cheque in respect<\/p>\n
of the same amount in 1994 and also found that if promissory<\/p>\n
note and cheque in the name of the accused and his son were<\/p>\n
Crl. Appeal No. 705 of 2001      -10-<\/span><\/p>\n
available to the complainant freely, this should be the result of<\/p>\n
the fabrication out of the papers that were obtained as security<\/p>\n
from them. In paragraph 16 the trial court found that the PW1<\/p>\n
admitted that if amount above Rs.10,000\/- was being advanced<\/p>\n
by a financial institution, it should be by cheque or draft. But, in<\/p>\n
the present case, an amount of Rs.2 lakhs was given to the<\/p>\n
accused in cash. But the explanation of PW1 is, that was on the<\/p>\n
basis of the request made by the accused. But in the case of the<\/p>\n
loan amount of Rs. 25,000\/- that was given by way of cheque.<\/p>\n
The complainant is a firm involved in the money lending business<\/p>\n
and there is no evidence to show the payment of Rs.2 lakhs and<\/p>\n
this observation of the trial court appears to be correct. After<\/p>\n
considering the evidence on merits, the trial court also found<\/p>\n
that it is apparent that the account before 1992 were available<\/p>\n
with the complainant and the case of the complaint that the same<\/p>\n
were not available could not be accepted.          Thus after the<\/p>\n
elaborate consideration of the entire case of the evidence on<\/p>\n
record, the trial court found that there was no possibility that<\/p>\n
Ext.P1 cheque was supported by consideration. Trial court also<\/p>\n
found that enough circumstances were brought out on behalf of<\/p>\n
Crl. Appeal No. 705 of 2001    -11-<\/span><\/p>\n
the accused to rebut the presumption against the complainant<\/p>\n
that the cheque was not supported by consideration. The Apex<\/p>\n
court in the decision in Ghurey Lal v. State of U.P.<\/a> reported<\/p>\n
in [2008 (4) KLT SN 17 (Case No. 17) (SC)] had laid out<\/p>\n
seven circumstances under which the appellate court can<\/p>\n
interfere with an order of acquittal passed by the trial court. In<\/p>\n
the said decision, the Apex court has held that appellate court<\/p>\n
can interfere only when there is substantial and compelling<\/p>\n
reasons. In the present case, I find that no such compelling on<\/p>\n
substantial reasons to interfere with the order of acquittal<\/p>\n
passed by the court below. Consequently the appeal fails.<\/p>\n
      In the result appeal is devoid of merit and accordingly the<\/p>\n
same is dismissed.\n<\/p>\n<\/p>\n
                                     V.K.MOHANAN, JUDGE<\/p>\n
rhs<\/p>\n","protected":false},"excerpt":{"rendered":"
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 – […]<\/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-245223","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nUllattil Agencies vs K.P.Abootty on 26 November, 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\/ullattil-agencies-vs-k-p-abootty-on-26-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ullattil Agencies vs K.P.Abootty on 26 November, 2008 - 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