IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 CRL.A.No. 1046 of 2001() ------------------------ CC.502/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT/COMPLAINANT ----------- V.ASOKAN, S/O JANARDANAN, CHALAD, KANNUR. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS/ACCUSED ------------- 1. P.JAYARAJAN, RAMAN PANICKAR, RAM NIVAS, KANNAPURAM, KANNUR 2. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED SRI.SURESH KUMAR KODOTH FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.1046/2001 -------------------- Dated this the 29th day of August, 2008 JUDGMENT The complainant in C.C.No.502/1996 on the files of the Judicial First Class Magistrate Court-II, Kannur, is the appellant herein. The accused was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act. The case of the complainant was that the accused borrowed an amount of Rs.3,00,000/- on 20.1.1995 and had executed a promissory note (subsequently marked as Ext.P1), agreeing to repay the said amount on demand. Thereafter, towards discharge of the liability, the accused came to the house of the complainant on 1.2.1996 and issued Ext.P2 cheque dated 2.4.1996. The cheque was presented for payment on the same day, but was dishonoured with the endorsement “payment stopped by the drawer”. It also came about that there was no amount lying in the credit of the accused as on that date. Ext.P4 lawyer notice was issued on 15.4.1996. This was met with Ext.P7 reply dated 26.4.1996. Thereafter the complaint was filed. Crl.A.1046/2001 2 2. The stand taken by the accused as evidenced by Ext.P7 reply notice and the testimony of DWs 1 to 4 with the accused himself being DW4 and with the aid of DWs 1 to 20, was that the accused had borrowed an amount of Rs.2,00,000/- altogether made up of amounts borrowed on four different dates. At the time of borrowing the amounts, he was compelled to hand over the signed blank cheque, which was later made use of as Ext.P2 along with another signed blank cheque and a promissory note. He had repaid the entire amount with interest aggregating Rs.2,40,000/- on 2.2.1996. He required the complainant to return the documents. The complainant agreed to return the documents, but later refused to do so. Ext.D1 notice was caused to be sent by the accused on 4.3.1996 through V.Jayakrishnan Advocate, wherein after referring to the factum of borrowal of money, it was stated that the accused had repaid the entire amount of Rs.2,00,000/- + Rs.40,000/- towards interest and the documents, originally handed over to the complainant were to be returned. The Crl.A.1046/2001 3 subsequent demand made in Ext.D1 notice was to return all the documents (21 in number) listed in the said notice. Complainant did not do so nor did he send a reply. Instead, he presented Ext.P2 cheque which was dishonoured. He then issued Ext.P4 notice on 15.4.1996 and this was met with Ext.P7 reply. The cheque was not supported by consideration and the entire amount due to the complainant had been paid. 3. As stated above, the accused was examined as DW4. Two other persons, apparently acquainted with the complainant, were examined as DWs 2 and 3. DW2 submitted before the Court that he had earlier filed a complaint against the brother in-law of the accused, one Sreedharan, at the instance of the complainant himself and this was by misusing a cheque leaf that was extracted from Sreedharan. Later, on realisation of the falsity of the complaint, he had caused a withdrawal of the same and had issued an intimation in this regard to his own counsel. DW3 also had a similar version when he spoke that he had also instituted a case at the Crl.A.1046/2001 4 instance of the complainant which was later withdrawn. 4. It has come about from the testimony of DWs1 to 4 and the documents produced before the Court that the accused had instituted a suit as O.S.399/1996 before the Munsiff Court, Kannur, seeking return of the documents, listed in Ext.D1 notice. The said suit was apparently pending at the time when the complaint was disposed of. The pendency of the suit as a fact, is referred to by the Court below. 5. The Court below on an elaborate appreciation of the evidence, went on to hold that the version of the accused seemed to be probable. The Court heavily relied on the fact that the accused had at the earliest point of time taken the stand that he had handed over the documents including Ext.P1 and the blank version of Ext.P2 having borrowed an amount of Rs.2,00,000/-. This stand was taken even before the date on which the complainant had presented Ext.P2 cheque. The Court below found that the evidence so adduced by the accused Crl.A.1046/2001 5 is quite probable and acceptable. The Court below held that the statutory presumption, which the complainant had drawn under Section 139 of the Negotiable Instruments Act, has been sufficiently rebutted by the evidence adduced by the accused. Accordingly, the accused was acquitted. Hence this appeal. 6. I heard Mr.V.R.Kesava Kaimal, learned counsel for the appellant and Mr.Sureshkumar Kodoth, learned counsel for the accused. I have perused the records and the judgment of the Court below. 7. The fact that there was a prior transaction between the accused and the complainant is admitted by the accused himself. His signature in Ext.P2 cheque is also admitted. But his defence was that the cheque while being handed over was a blank cheque. He conceded that he had borrowed an amount of Rs.2,00,000/- from the complainant. He has made an attempt to substantiate his contention that an amount of Rs.2,40,000/- was repaid on 2.2.1996 by producing the Crl.A.1046/2001 6 ledger extract of the bank account maintained by him, showing withdrawal of the amount of Rs.3,00,000/- on the said day. Mr.Kesava Kaimal is correct when he contends that the same by itself will not evidence handing over the said amount to the complainant. But the question is whether the version given by the accused in this case can be reasonably held to be acceptable. This will have to be assessed in the light of other evidence adduced by him. 8. What is found crucial in this case is the despatch of Ext.D1 notice dated 4.3.1996, through V.Jayakrishnan, advocate, at the instance of the accused requiring the complainant to hand over 21 documents which have been specifically listed therein. Ext.P2 cheque is also listed in the said list of documents. Receipt of Ext.D1 notice is not denied by the complainant but what assumes significance is that the complainant did not send any notice in rebuttal thereof, nor has the complainant come out with an explanation with regard to the refusal or failure to send a reply to Ext.D1 when Crl.A.1046/2001 7 he was examined as PW1. There is not even a whisper about this aspect in the chief examination of PW1. 9. Nor was any reference made by the complainant in this regard in the statutorily prescribed notice, Ext.P4, sent by him after presentation of the cheque except a reference that the contention taken up by the accused is wrong. The Court below correctly appreciated, in the circumstances, that Ext.D1 notice was sent before the date on which the cheque was presented or rather before the date which is borne by the cheque. Ext.D1 notice must have been served on the complainant well before the date on which he presented the cheque. All these circumstances would give a strong impression that the transaction between the complainant and the accused was not in the manner suggested by the complainant. The complainant has not come out with an explanation as to how a reference could be made to the very same cheque as Ext.P2 in a notice which was sent on 4.3.1996. The case of the complainant is that Ext.P1 promissory note was executed at the time when the amount was Crl.A.1046/2001 8 received on 20.1.1995 and then cheque was handed over on 2.4.1996 and he had presented the cheque on the same day. If Ext.D1 notice was accepted, then this version would definitely become very suspect. In these circumstances, it would have been quite appropriate for the complainant to give an explanation as to how the accused sent Ext.D1 notice on 4.3.1996 specifically referring to the cheque leaf seeking return of the same and why he desisted from giving a reply to the same. In my view, these facts were sufficient to come to the conclusion that the statutory presumption the complainant was entitled to draw under Section 139 of the Act stood adequately rebutted by the evidence adduced by the accused. 10. Mr.Kesava Kaimal learned counsel for the appellant pointed out that the Court below had rightly refused to take into account the testimony of DWs 2 and 3 and if such testimony is eschewed from consideration, what remains is only the testimony of DW4, the accused himself. It is true that the testimony of DWs 2 and 3 Crl.A.1046/2001 9 were not accepted as sufficiently credible means by the Court below. But the version given by the accused as DW4 was on certain material aspects consistent with what was spoken to by DWs 2 and 3. 11. Mr.Kaimal then contended that the suit filed by the accused as O.S.399/1996 for return of the documents, a factor heavily relied on by the Court below, came to be dismissed on 23.9.2006. He contended that this is therefore a fact which should weigh heavily with this Court in considering the version put forward by the accused. He therefore, prayed for a remand to the Court below to enable the complainant to place on record a copy of the judgment. I am afraid, I am unable to accept the said request. Firstly, the conclusions arrived at by the Court below were not based merely on the fact that the accused had filed O.S.399/1996 before the Munsiff Court, Kannur, seeking return of the documents. That was the only one aspect which was referred to. What is significant was that the accused had taken this contention well before the date on which Crl.A.1046/2001 10 the cheque itself was presented and had proceeded to take such measures as would have been done by a person who normally would be placed in that situation. What is therefore, relevant is the factum of filing a suit and not that the Court had actually accepted the claim of the plaintiff in that regard. Even the admissibility of the judgment of the Civil Court, would otherwise be governed by the provisions of Sections 41 to 44 of the Evidence Act. The judgment would be relevant and admissible only to prove the existence of a list. This obviously is not a matter in dispute at all. No real purpose would be served in remanding the matter to the Court below only for the said purpose. 12. In the ultimate analysis, I am satisfied that the evidence has been correctly appreciated by the Court below and the finding of the Court below that the case set up by the accused seems to be acceptable and sustainable is well substantiated. This Court in an appeal against an acquittal would be inclined to interfere, only if this Court is in a position to find that Crl.A.1046/2001 11 the conclusions arrived at by the Court below are eminently unsustainable. That, I am not in a position to do. For all these reasons I am of the view that the appeal is bereft of merit and accordingly the same is dismissed. V.GIRI, Judge mrcs