IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 CRL.A.No.26 of 2008 (C) ---------------------------- AGAINST THE ORDER IN CRL.L.P.1286/2007 Dated 18/12/2007 ST.22/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... APPELLANT: COMPLAINANT -------------------------------- K.V.RAMAKRISHNAN, S/O KANNAN, 'SWAPNA'(KULANGARA VEETIL), M.M.STREET, PANTHALAYANI AMSOM AND DESOM, P.O.KOYILANDY. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENTS: ACCUSED AND PROSECUTOR ---------------------------------------------------- 1. P.P.KRISHNAN, S/O KUNHIRAMAN, 'PUTHIYAPURAYIL', NEAR PAYATUVALAPPIL TEMPLE, P.O.KOYILANDY. 2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.B.V.JOY SANKER PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.26 of 2008 ------------------------------------------------ Dated this the 17th day of March, 2008 JUDGMENT This appeal with leave is filed by the complainant in S.T.22/07 on the file of the Judicial First Class Magistrate's Court-II, Quilandi assailing the acquittal of the first respondent of an offence punishable under Section 138 of the N.I. Act vide Section 255 (1) of the Cr.P.C. 2. The appellant filed complaint in the court below alleging that the first respondent who is his friend availed of a loan of Rs.2 lakhs from him on 20/06/05 promising to repay the amount on 20/12/05 and issued Ext.P1 post dated cheque with dt.20/12/05 for a sum of Rs.2 lakhs drawn on his account at the Quilandi branch of Syndicate Bank in discharge of the said debt; that the cheque when presented by him through his bankers for collection, it was returned dishonored by the Crl. Appeal No.26 of 2008 -2- drawee bank under Ext.P2 memorandum dt.23/12/05 assigning the reasons “funds insufficient” and “drawer's signature differs”; that Ext.P1 cheque with Ext.P2 memorandum was delivered by his bankers to him under Ext.P3 memo on 24/12/05; that thereupon, the original of Ext.P4 notice dt.06/01/06 was issued to the first respondent intimating him of the dishonour of the cheque and demanding payment of the amount covered by the cheque; that the said notice was received by the first respondent under Ext.P5 postal acknowledgment card on 14/01/06 to which he has issued Ext.P6 reply on 08/02/06 setting up untenable contentions and he has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate took cognizance of the offence under Section 138 of the N.I. Crl. Appeal No.26 of 2008 -3- Act and registered the complaint as S.T.22/07. On appearance of the first respondent in the court below, he was served with copies of all relevant records in the case, and he was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the complainant PW1 was examined and Exts.P1 to P6 were got marked. On the appellant closing his evidence, the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. He also filed a written statement of defence wherein he contended that he has not issued Ext.P1 cheque to the appellant; that there is no financial dealings between himself and the appellant; that an amount of Crl. Appeal No.26 of 2008 -4- Rs.35,000/- had been advanced by the appellant to his friend Thandanvayal Babu and demanding that amount the appellant had issued notice to the said Babu in 2004; that on receipt of notice the matter was settled between the appellant and the said Babu by intervention of mediators that he was one of those mediators who intervened to have the said case settled; and the appellant entertained animosity towards him on that count and because of that animosity, he has created Ext.P1 cheque on a cheque leaf which was lost from his possession and has filed the complaint causing the cheque to be got dishonoured. In Ext.P6 reply notice also the stand taken by the first respondent is that Ext.P1 cheque is one made up on a cheque leaf lost from his possession though however, he has not stated anything regarding his intervention as a mediator in settling the dispute between the appellant and Thandanvayal Babu. However, the first respondent did not Crl. Appeal No.26 of 2008 -5- adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid came to the conclusion that the appellant has miserably failed to prove that he was issued the cheque by the first respondent and that therefore, the presumption under Section 139 of the N.I. Act is not available in his favour and that as the appellant has failed to prove that the first respondent has received the amount covered by the cheque from him, no offence stands made out as against the first respondent. Consequently, he acquitted the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 255 (1) of the Cr.P.C. Hence, this appeal by the aggrieved appellant. 6. It is vehemently contended before me by the learned counsel for the appellant that the specific case set up by the first respondent both in his reply notice (Ext.P6) Crl. Appeal No.26 of 2008 -6- and in the written statement of defence filed by him is that Ext.P1 is made up on a cheque leaf lost from his possession. He also points out that in Ext.P6 reply, it is specifically stated that in relation to the loss of cheque leaf bearing No.153831, complaint had been filed before the Quilandi police, but that has not been proved by the first respondent and that therefore, when it is shown that Ext.P1 is cheque drawn on an account maintained by the first respondent with the drawee bank, it is to be presumed in the absence of any other evidence that the appellant has come into possession thereof as it had been delivered over to him by the first respondent; and that inasmuch as all statutory formalities required for the maintainability of a complaint under Section 138 of the N.I. Act stands made out in the instant case and the dishonour of the cheque was also for reason of insufficiency of funds in the account of the first respondent Crl. Appeal No.26 of 2008 -7- to honour the same, the first respondent ought to have been found guilty of offence punishable under Section 138 of the N.I. Act and convicted and sentenced for the said offence. In other words, the argument of the learned counsel is that when the first respondent has failed to prove his case that the cheque leaf used for Ext.P1 is cheque leaf that has been lost from his possession as contended by him, it has to be held that Ext.P1 being a cheque drawn on an account maintained by the first respondent with the drawee bank, it is cheque issued by the first respondent in discharge of debt due to the appellant. I fail to appreciate the argument. Unless execution and delivery of Ext.P1 cheque is established on the evidence of PW1/the appellant, in the absence of any other evidence on his side, the argument advanced cannot be accepted. The appellant as PW1 has deposed that he is a Sales Tax Practitioner Crl. Appeal No.26 of 2008 -8- who is having no office but is doing work at his house only; that the work he undertakes is only preparing of business accounts to be submitted before tax authorities; and that his remuneration is proportionate to the volume of work; that there is absolutely no record to show as to what is his remuneration or income and that he is unable to say as to what will be his approximate monthly income as there will even be months when he will not get any income though in some months he may get Rs.5,000/-. He has also stated that he is not an assessee and that he is not submitting income tax returns; and that there is absolutely no record to show his monthly income and that however, he is not having any landed properties and is residing at his paternal house along with his father. According to the appellant, the first respondent is a driver by profession and he asked for a loan of Rs.2 lakhs on 20/06/05 as Crl. Appeal No.26 of 2008 -9- he wanted to purchase some vehicle and he was advancing the amount on the same day. From the above version, it will appear as if he was in possession of so much amount in cash with him so as to be delivered over on the asking by the first respondent. He has admitted in cross examination that there was no one present when the first respondent asked for loan coming over to his house. When asked about the source he stated that he was in possession of the entire amount of Rs.2 lakhs and he was in gulf for five - eight years, but in the same breath he has stated that he was having in possession some cash and the balance he collected from his friends. He does not say as to from whom he collected funds so as to advance loan to the first respondent on the very same day of the first respondent asking for loan of Rs.2 lakhs. Again when asked about the cheque he has stated that it occurred to him that there must be record when amount is advanced and Crl. Appeal No.26 of 2008 -10- therefore, on the same day he obtained the cheque from the first respondent but all the same, when asked the reason as to why any other record evidencing the transaction was not obtained he has stated that even the cheque was being handed over to him by the first respondent voluntarily. Again, when asked about loan transaction he had, he has stated that he has not advanced money to anybody else and asserted that he has absolutely no acquaintance with Thandanvayal Babu but in the same breath he said that he had caused notice to be issued to the said Babu through lawyer in 2004 as amount was due from him which he had availed of as loan. This shows that the appellant has no hesitation to speak any falsehood. It is true that he has stated when asked as to whether he was not uttering falsehood that he had not advanced loan to Thandanvayal Babu, he stated that he forgot that. I can understand one forgetting Crl. Appeal No.26 of 2008 -11- advancing of a loan to someone if he has already repaid that and there was no reason why it has to be memorised. But in the instant case, the version of the appellant was that he does not even know Thandanvayal Babu and has no acquaintance with him, but he admitted of funds having been advanced to him only when he was cornered asking as to whether he had not caused lawyer's notice to be issued to that Babu. PW1 has denied the suggestion in cross examination that Ext.P1 cheque is not one issued by the first respondent to him and that the signature in Ext.P1 is not that of the first respondent and that the first respondent had not borrowed any amount from him. But all the same, he does not swear that the first respondent was affixing signature in Ext.P1 cheque in his presence, but says only that first respondent was signing in Ext.P1 cheque at his house. The solitary oral evidence let in by the appellant in support of his case is Crl. Appeal No.26 of 2008 -12- his own interested testimony coupled with the documentary evidence Exts.P1 to P6. 7. It is worthy to note that the Apex Court has held in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC) that the presumption under Section 139 of the N.I. Act is not regarding existence of any debt or existence of any legally enforceable debt, but it raises only a presumption in favour of the holder of a cheque that the same has been issued for discharge of any debt or other liability. In other words, the burden is on the appellant in the instant case to prove that Ext.P1 has been issued to him and also that the debt as alleged existed so as to be discharged by issuance of Ext.P1. In the instant case, there is absolutely no convincing evidence that the appellant was having Rs.2 lakhs or that he was possessed of sufficient means to advance such a huge amount as Rs.2 lakhs to the first respondent and there is no evidence also Crl. Appeal No.26 of 2008 -13- regarding execution and delivery of Ext.P1 cheque by the first respondent to him. 8. For all the above reasons, I cannot but concur with the finding of the court below that no offence stands made out against the first respondent for conviction under Section 138 of the N.I Act. This appeal therefore, is devoid of merit and deserves only to be dismissed. 9. In the result, confirming the correctness of the acquittal of the first respondent of offence under Section 138 of the N.I. Act, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-