IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 CRL.A.No. 2006 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.562/2003 Dated 01/12/2003 CC.147/2001 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... APPELLANT ------------------ D. BHASI, T.C. 27/1315, RISHIMANGALAM, VANCHIYOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.TONY MATHEW SRI.VIVEK.JOY.K RESPONDENTS: -------------------- 1. BAJI GOVINDAN, S/O. K.P. GOVINDAN, GOLF LINK ROAD, JAWAHAR NAGAR, THIRUVANANTHAPURAM 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.ANILKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SMT. LOWSY. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 2006 of 2003 ---------------------------------------- Dated the 13th day of October, 2011 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 26.9.2003 in C.C.No.147 of 2003 of the court of Judicial First Class Magistrate- IV, (Mobile), Thiruvananthapuram, since the learned Magistrate, by the above judgment acquitted the accused under section 255 (1) Cr.P.C. 2. The case of the complainant is that the accused borrowed an amount of Rs.50,000/- from him and towards the discharge of the said liability, the accused issued a cheque dated 19.2.2001 for an amount Rs.50,000/- drawn from the account maintained by him and when the said cheque presented for encashment, the same was dishonoured as there was no sufficient fund in the account maintained by the accused and the accused failed to repay the amount covered by the dishonoured cheque in spite of the statutory notice which received by the accused and therefore, the accused has CRA 2006/03 2 committed the offence punishable under section 138 of the NI Act. With the above allegation, by filing a complaint the complainant approached the Chief Judicial Magistrate, Thiruvananthapuram, based upon which cognizance was taken for the said offence and S.T.No.301/2001 was instituted and subsequently, the case was made over to the present trial court wherein the case was renumbered as C.C No.147/2001. On appearance of the accused in the trial court, trial was proceeded and during the trial of the case, the complainant was examined as PW1 and produced Exts.P1 to P7 documents . From the side of the defence, besides the accused who was examined as DW4, DWs 1 to 3 were also examined and produced Exts.D1 to D7 documents. After consideration of the entire evidence and materials, the trial court has found that the case of the defence is more probable and the accused has succeeded in rebutting the presumption. Thus it was found that the complainant has failed to prove that Ext.P1 cheque was executed by the accused to discharge a lawful debt due to the complainant. It is the above findings and the consequent order of acquittal challenged in this appeal. CRA 2006/03 3 3. I have heard Sri P. Vijayabhau, the Learned senior counsel appearing for the appellant and and Sri R.Anil Kumar appearing for the Ist respondent. 4. The crux of the allegation raised by the complainant against the accused is that, towards the discharge of a legally enforceable debt, due to the complainant, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured and the cheque amount was not paid in spite of the statutory notice and therefore, the accused has committed the offence punishable under section 138 of the NI Act. Whereas the case set up by the accused is to the effect that absolutely there is no transaction between the complainant and the accused and according to the accused, Ext.P1 cheque is the one which entrusted with DW1, an advocate, who was engaged by the accused in two arbitration cases at Thiruvananthapuram. The trial court, after considering the evidence and materials, found that the case of the complainant is inconsistent as to how the accused borrowed the money from the complainant and it was also found that the complainant is not speaking truth before the Court and thus cast serious doubt on the veracity of the CRA 2006/03 4 evidence of the complainant and thus the case of the complainant is unbelievable . The trial court has also found that the materials and evidence adduced by the accused positively proved the correctness and the consistent case of the defence that the accused has not issued Ext.P1 cheque to the complainant but it was issued to DW1 as security or advance being Advocate fee, is more probable and thereby rebutted the presumption and accordingly, found that the complainant has failed to prove Ext.P1 executed by the accused to discharge a lawful debt due to the complainant. 5. The learned counsel for the appellant vehemently submitted that the trial court has miserably failed to consider the evidence and materials in its true perspective and found against the complainant. According to the Learned counsel, the evidence of the complainant, especially, the deposition made by the complainant as PW1 and other documents are sufficient to attract the liability against the accused under section 138 of the NI Act. According to the counsel, the trial court , due to erroneous consideration and misinterpretation of the evidence and materials refused to accept the case of the complainant and CRA 2006/03 5 opted to rely upon the defence evidence and approved the defence version. In support of the above submission, the Learned counsel invited my attention to Ext.D4 letter dated 1.2.2001, a document which is heavily relied on by the Learned Magistrate so as to accept the case of the defence and in holding that the complainant has failed to prove that Ext.P1 was executed by the accused to discharge the debt due to the complainant. According to the learned counsel, even according to the accused, though the cheque was entrusted with DW1 during the year 1994, it is quite unbelievable that DW1 retained the cheque till the date of Ext.D4 letter that just two weeks prior to the presentation of the cheque before the bank for encashment. It is also pointed out by the counsel for the appellant that there is no evidence to show that Ext.D4 letter was served on DW1 since no official document other than Ext.D3 is produced by the accused. Ext.D3 is only a receipt for the letter sent under certificate of posting. Thus according to the counsel, on the basis of Ext.D3 it cannot be believed for a moment that Ext.D4 letter was served on DW1 and therefore, no sanctity can be attached to Ext.D4 letter and therefore the CRA 2006/03 6 entire findings of the Learned Magistrate based upon Ext.D4 letter are liable to set aside and consequently the order of acquittal recorded in favour of the accused has to be reversed. 6. On the other hand, Sri R.Anilkumar, the counsel appearing for the Ist respondent/accused submitted that the complainant has no specific case regarding the actual transaction and absolutely no independent evidence is adduced in support of the transaction claimed by the complainant. The learned counsel specifically pointed out that the very fact that, the complainant is a nephew of DW1, is sufficient to hold that the case of the accused is probablised. It is also pointed out by the counsel that in the complaint there is no averment regarding the actual date of occurrence. The Learned counsel has also pointed out that statutory notice in the present case is caused to send to the accused through the junior of DW1 with whom, according to the accused, he entrusted Ext.P1 cheque. It is also pointed out by the learned counsel that copy of the lawyer notice was also sent to the mother of the accused and in the said notice, it is stated that the mother of the accused stood as surety for the payment. But during the trial, the case of CRA 2006/03 7 the complainant is that when the payment was effected, nobody was present including the mother of the accused. Thus, according to the Learned counsel, the trial court is correct in its finding especially, because of the materials and evidence adduced by the defence. Thus According to the Learned counsel , no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondent and also perused the judgment of the trial court and evidence and materials on record. 8. In the light of the rival pleadings of the contesting parties and in the light of the findings of the trial court and in view of the materials and evidence on record, the only question to be considered is whether the trial court is justified in its finding that the complainant has failed to prove that Ext.P1 cheque was executed and issued by the accused towards the discharge of a legally enforceable debt that due to the complainant. Though the trial court entered into its finding and acquitted the accused based upon several grounds and reasons, the learned counsel for the appellant during his fervent CRA 2006/03 8 argument to assail the judgment of the trial court, his contentions are confined to the findings of the learned Magistrate connected with Ext.D4 letter. As I indicated earlier, it is the submission of the learned counsel that in the absence of any positive and convincing evidence that Ext.D4 letter was served on DW1, it cannot be said that the accused had succeeded in making out a consistent case against Ext.P1 cheque and to disbelieve the case of the complainant. I am unable to sustain the above contention in the light of the particular facts and circumstances involved in the case. As rightly pointed out by the counsel for the respondent, the complaint has no specific case as to when the amount was borrowed from the complainant, connected with the transaction which he claims. So to prove the transaction, absolutely there is no acceptable and convincing evidence. The trial court has also found in paragraph 6 of its judgment that even the address given in the complaint itself is under doubt. As I indicated earlier, Ext.P3 Advocate's notice was sent through a junior Advocate of DW1, which is a relevant circumstance in the background of the particular defence set up by the accused. It CRA 2006/03 9 is also relevant to note that in Ext.P3 notice, it is specifically stated that the money was given to the accused on the surety of his mother , namely Pankajakshy , but there is no such case either in the complaint or in the affidavit filed in lieu of the chief examination. But during the examination of PW1, he had stated that mother of the accused was not with the accused when the accused borrowed money from the complainant. Thus it can be seen that even in the absence of any independent evidence, regarding the transaction, the complainant has failed to establish the same at least with a consistent case. So on a scanning of the evidence of PW1, the complainant, it can be seen that the complainant has miserably failed to prove his case beyond reasonable doubt and the inconsistencies and other circumstances pointed out earlier would render the case of the complainant as doubtful and unbelievable. 9. Thus let me examine the case of the accused. The specific case of the accused is that he is an 'A' Class Government Contractor and connected with his contract work, there were two Arbitration cases and DW1 was the counsel engaged by the accused in the above cases and towards the CRA 2006/03 10 payment of fee to DW1, he had paid Rs.10,000/- in cash and, as a security for the payment of fee, a cheque duly signed by him was handed over to DW1 and it is the said cheque misused by the complainant for filing the present complaint against the accused. To substantiate the above contention, the defence mainly depends upon Ext.D4 letter and other materials and evidence on record. Ext.D4 letter is dated 1.2.2001, addressing DW1 whereby DW1 was requested to return the cheque bearing No. 321992 of Central Bank, Rishimangalam branch, which was entrusted with DW1 as security towards the payment of Advocate's fee. According to the accused, he had paid a total sum of Rs.2,92,000/- to DW1 towards the fee and in order to file the case before the High Court, he had entrusted a sum of Rs.15,000/- with DW1 to be paid to the counsel to be engaged in the High Court, but the said amount was not paid and therefore the said amount was demanded back by the accused and out of that enmity arose against the accused, DW1 filed the present case through PW1, the complainant. In this juncture, it is relevant to note that Ext.D4 letter is dated 1.2.2001. It is beyond dispute that the cheque in question was presented for CRA 2006/03 11 encashment on 19.2.2001, i.e., much after Ext.D4 letter. Ext.P3 lawyer notice was also sent on 24.2.2001 and subsequently, the complaint was filed on 20.4.2001. Thus it an be seen that Ext.D4 letter was in existence even before presenting Ext.P1 cheque for encashment. The learned counsel for the appellant vehemently submitted that Ext.D4 cannot be acted upon since there is no evidence to show that Ext.D4 served on DW1. According to the learned counsel, the accused has no case that Ext.D4 was sent to DW1 as a registered post, and therefore, even the presumption under section 27 of the General Clauses Act is not applicable. According to me , the above contention is not sustainable in the given facts and circumstances of the case. In order to rebut the presumption under section 139 of the NI Act, as per the settled position of law, the accused need not disprove the case of the complainant and the yardstick as in the case of prosecution, the accused is not bound to prove the case beyond shadow of doubt. The accused can rebut the presumption by probablising his defence version. Even if the accused succeeded in creating a reasonable doubt, the same will be sufficient to rebut the presumption. In the CRA 2006/03 12 present case, it can be seen that as per Ext.D3, a letter was sent by the accused to Vellarada S. Viswanathan, Advocate & Notary, Powerline Building, Vanchiyoor, Thiruvananthapuram-35. The stamped date would show that the certificate is dated 1.2.2001, Nothing is on record to show that DW1 is not residing in the same address or any other person residing with the same name and address. Therefore, according to me, the trial court is fully justified in assigning the presumption by invoking section 114 of the evidence Act that Ext.D4 was served on DW1. That being the position, I have no hesitation to hold that the accused has succeeded in rebutting the presumption and the materials and evidence on record consistently probablise the case of the accused that the cheque in question is the one which is not executed and issued by the accused in favour of the complainant towards the discharge of any legally enforceable debt, on the other hand, the same was one which entrusted with DW1 as security connected with the conduct of the case of the accused. 10. In the light of the above facts and circumstances and the discussion, I am of the view that the learned Magistrate is CRA 2006/03 13 fully justified in his finding that the complainant has failed to prove that Ext.P1 cheque was executed and issued by the accused towards the discharge of any legally enforceable debt due to the complainant. In the result, there is no merit in the appeal and accordingly the same is dismissed. V.K. MOHANAN, JUDGE. kvm/- CRA 2006/03 14