IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 CRL.A.No. 1029 of 2002() ------------------------ CC.461/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... APPELLANT(S): COMPLAINANT ------------------------- OUSEPH NELLIKUNNEL, S/O.THOMAS, NELLIKUNNEL HOUSE, MUZHAKUNNU AMSOM, PALADESOM, KANNUR (DT.) BY ADVS. SRI.M.C.RATNAKARAN SRI.P.NARAYANAN RESPONDENT(S): ACCUSED ---------------------- 1. K.V.SOSA, D/O.VARKEY, AGED 55, RETIRED NURSE, MUZHAKUNNU (P.O) KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.T.A.RAMADASAN BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR SRI.CIBI THOMAS FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ------------------------- Crl.A.No.1029 of 2002 ------------------------- Dated this the 28th day of June, 2010 JUDGMENT Appellant, the complainant in C.C.461/1998 is challenging the order of acquittal passed by Judicial First Class Magistrate, Kuthuparamba in this appeal. Appellant lodged the complaint before the Magistrate against first respondent alleging that on 31.1.1998 she borrowed Rs.40,000/- promising to repay the same on or before 30.3.1998 and when appellant demanded the amount she issued Exhibit P1 cheque drawn in her account maintained in Kannur District Co-operative Bank Ltd. for Rs.40,000/-. When the cheque was presented for encashment, under Exhibit P2, it was dishonoured. On 13.5.1998 appellant sent original of Ext.P3 notice demanding the amount covered by Ext.P1. It was received by the appellant under Exhibit P5. First respondent did not pay the amount. Instead he sent Exhibit P6 reply raising false allegations. First respondent thereby committed the offence under Section 138 of Negotiable Instruments Act. Crl.A.No.1029 of 2002 2 First respondent pleaded not guilty. Appellant examined himself as PW1 and the Manager of the Bank as PW2 and marked Exhibits P1 to P7. The defence taken was that appellant was a surety to a hire purchase transaction entered into by the husband of the first respondent with K.S.F.E and when appellant agreed to be the surety he insisted for getting two signed blank cheques and therefore first respondent handed over the two signed blank cheques. Later the husband of first respondent failed to pay the monthly installments. K.S.F.E. initiated steps for recover the amount from the sureties including appellant. Appellant contacted first respondent to pay the amount. When the first respondent could not pay that amount within two months, he threatened that the cheques will be presented and prosecution will be lodged. The husband of the first respondent was examined as DW2 and the Manager of the K.S.F.E. was examined as DW1. Copy of ledger relating to the hire purchase transaction was marked as Exhibit D1. Based on the Crl.A.No.1029 of 2002 3 evidence learned Magistrate found that though appellant has complied with all the statutory formalities, he failed to establish that Exhibit P1 cheque was issued towards discharge of any debt or liability and acquitted the first respondent. The case of the appellant is that the learned Magistrate did not appreciate the evidence properly and therefore the order of acquittal is to be set aside. 2. Learned counsel appearing for the appellant and the first respondent were heard. 3. The learned counsel appearing for the appellant argued that the defence in Exhibit P6 reply notice is that two cheques, were demanded by the appellant for standing as surety and two cheques were entrusted and later on default of payment of hire purchase installments, the cheque was misused and presented for encashment and the case was instituted, but the evidence of DW2, the husband of the first respondent, is to the effect that three cheques were demanded and entrusted as Crl.A.No.1029 of 2002 4 security and the contradictory case was not properly appreciated. The learned counsel also argued that admittedly petitioner and first respondent are neighbours and friends and in such circumstances, it is not unusual to grant a loan without getting any document and it was due to that friendship appellant granted a loan to help the first respondent for the marriage of her daughter and learned Magistrate should not have relied on the evidence of DW2 and disbelieved the evidence of PW1 and on the evidence it is to be found that Exhibit P1 cheque was issued towards repayment of the loan of Rs.40,000/- obtained by the first respondent from the appellant. 4. The presumption provided under Section 139 of Negotiable Instruments Act enables the appellant to draw the presumption that the dishonoured cheque was issued towards discharge of an existing debt or liability, provided execution of the cheque was admitted or proved. First respondent did not admit that he has drawn Exhibit P1 cheque to the Crl.A.No.1029 of 2002 5 appellant. On the other hand, her case is that when appellant agreed to be the surety for the hire purchase transaction entered into by DW2, the husband, appellant insisted for signed blank cheques as security and thus blank cheques were given and Exhibit P1 was one such cheque. Admission of the signature in a blank paper or blank stamp paper or blank cheque, is not admission of execution of the document or the cheque. Unless the blank cheque was signed and handed over to the payee authorising the payee to fill the cheque, it cannot be said that what was handed over was a cheque. It would be a cheque, only on filling the details. That exactly is the case herein. Admission about handing over the signed blank cheques does not tantamount to admission of execution of the cheque. Therefore, to draw the presumption under Section 139, appellant has to independently prove the execution of the cheque. 5. Though it is contended in Exhibit P3 notice and the complaint that first respondent issued Crl.A.No.1029 of 2002 6 Exhibit P1 cheque, evidence of PW1 is that the cheque was written and brought by the first respondent and handed over to him from the school. In cross-examination, PW1 further admitted that signature and the handwriting seen in Exhibit P1 cheque are not that of the same person but in different writings. PW1 has no case that first respondent has brought the cheque and in his presence affixed his signature. Therefore, there is no evidence of execution or drawing of the cheque. Therefore, presumption available under Section 139 is not available. It is to be proved independently. 6. First respondent has contended that she did not receive any amount from the appellant and did not issue Exhibit P1 cheque towards repayment of any amount. PW1 was cross examined with regard to the payment of Rs.40,000/- stated by him. According to PW1, first respondent asked for a loan of Rs.40,000/- on 31.1.1998 and he paid that amount on the same day. In cross examination PW1 admitted Crl.A.No.1029 of 2002 7 that he is maintaining savings bank accounts in several banks and he used to remit the money in savings bank accounts thereby indicating that he will not keep Rs.40,000/- at his house and instead would be depositing it in one of his accounts. If that be so, in the normal course PW1 would not have a ready of cash of Rs.40,000/- on 31.1.1998 to be paid to first respondent. Case could have been appreciated if PW1 has a case that first respondent sought for a loan in advance and PW1 promised to make available the amount at his house on 31.1.1998 and asked first respondent to go there and collect the amount. But that is not the case. Again the case of the petitioner is that while receiving the amount, first respondent agreed to repay the amount on or before 31.3.1998. If that be the case, in the normal course first respondent is not expected to write a cheque and bring it to PW1 and hand it over to PW1 disclosing that she does not have the cash in her account and he need present the cheque only after one month. If that be the true facts, Crl.A.No.1029 of 2002 8 in the normal course first respondent would only be issuing a post dated cheque, on 31.1.1998 and not the cheque which would be presented either on 31.1.1998 or on 1.4.1998. This also casts doubt on the version of PW1. Again in cross examination the version of PW1 is that the cheque was issued on 31.3.1998, and at the time when the cheque was issued agreeing for a period of two months. If that version is true the cheque would be issued as a post dated cheque, and cheque would not have been issued showing the date of its execution. If it is to be taken that issuance of cheque was on 31.3.1998, to be presented after two months, first respondent would have issued only a post dated cheque especially when even according to the petitioner, first respondent had no money in her account at that time. When these facts are appreciated in the proper prospective with the evidence of DW2 and the case set up in Ext.P6, the finding of the Magistrate is correct. Hence contradiction in Exhibit P6 and evidence of DW2 Crl.A.No.1029 of 2002 9 that three cheques were issued is not fatal. Based on the inconsistency of the defence case or the weakness of the defence case, an accused cannot be convicted. It is for the complainant to establish that Exhibit P1 cheque was issued towards discharge of an existing debt or liability. The learned Magistrate rightly acquitted the first respondent. It cannot be said that the view taken by the learned Magistrate is not a possible or reasonable view that could be taken on a proper appreciation of the evidence. If that be so, the order of acquittal cannot be interfered. The appeal fails and is dismissed. M.Sasidharan Nambiar, Judge cms Crl.A.No.1029 of 2002 10 M.Sasidharan Nambiar, J. ------------------------- Crl.A.No.1029 of 2002 ------------------------- JUDGMENT 28th day of June, 2010