IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.A.No. 709 of 2002() -------------------------------- CC.53/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE .................... APPELLANT(S): COMPLAINANT: -------------------------- M/S. TAURUS INVESTMENTS, "RANGE VILAS", 18/197,KANDAMUJLAM CROSS ROAD, KOZHIKODE (A PARTNERSHIP CONCERN), REPRESENTED BY ITS PROPRIETOR,L.B.RAMAKRISHNAN,S/O.L.N.SURENDRAN. BY ADV. MR.C.P.MOHAMMED NIAS RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. R.MURALEEDHARAN, 1/3034, KANNAMMAL ILLAM, WEST HILL, CALICUT-673 005. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. MR.JACOB ABRAHAM FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.709 OF 2002 ------------------------------ Dated this the 26th day of May, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the learned Judicial Magistrate of First Class-II, Kozhikode in C.C.No.53/2001. It was a complaint filed under Section 138 of the N.I.Act. The case of the complainant is to the effect that he is the proprietor of a concern dealing with business as sub broker. The accused owed certain amount to him and out of the said amount, towards the discharge of the liability, he had issued a cheque for Rs.15,000/= on 27.1.2002 which when presented for encashment, returned with the endorsement of insufficiency of funds. Thereafter, a notice was sent and action was initiated. On the contra, the accused would contend that he has no dealings with the concern as such, but was having some dealings with L.S. Ramakrishnan and in the course of the business, a blank cheque had been given, which had been utilised to create a false case. The trial court, on examination of the materials, 2 CRL.A.NO.709/2002 found that the accused had executed Ext.P1 cheque as alleged, but held that the accused has rebutted the presumption under Section 139 of the N.I.Act and therefore, non suited the complainant. It is against that decision, the complainant has come up in appeal. 2. The point that arises for determination is whether the accused has committed any offence under Section 138 of the N.I.Act and (2) whether there is anything to interfere with the decision rendered by the trial court. 3. Points 1 and 2: These points deal with the question whether the accused is to be prosecuted under Section 138 of the N.I.Act. According to the complainant, it is running a business of brokerage and the accused had transaction with it and certain amount is due to the complainant from the accused and towards the discharge of the liability, he had issued a cheque for Rs.15,000/= on 27.1.2001. On the contra, the accused would contend that he has no such dealings with the concern at all, but had some transaction with the individual and no 3 CRL.A.NO.709/2002 amount is due to the concern from him. The court below analysed the materials available and held that Ext.P1 cheque was executed by the accused in favour of the complainant. Thereafter, the court proceeded to decide the question of presumption. There are two presumptions available under the provisions of the N.I.Act. The first presumption comes under Section 118 of the N.I.Act. That presumption is that, when execution of the document is proved, it has to be presumed that it is supported by consideration. There are several other presumptions in Section 118 from clause (b) to clause (g) as well. Section 139 of the Act draws the presumption that unless the contrary is proved, the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or part, of any debt or other liability. Of course, both the presumptions under Sections 118 and 139 are rebuttable presumptions. The accused and the complainant are parties to the share business. There are lot of faith and confidentiality in such share transactions. According to the complainant, at the instance of the accused 4 CRL.A.NO.709/2002 shares have been sold whereas, according to the accused, he had never authorised the complainant to sell any shares. In the course of evidence, the complainant had been questioned regarding these transactions and it is deposed by him that there is a ledger and entries are there in the ledger regarding the transaction. The court below jumped at a conclusion that since he has admitted that there is a ledger and since he has not produced the ledger, adverse inference has to be drawn. I am afraid that such an approach by the court below is erroneous. When the court wants an adverse inference to be drawn or the party wants the attention of the court regarding the entries in the document which is relevant for the purpose of the decision, the party, who is in possession of the document is to be directed to produce the document. In this case, the accused never wants any document to be produced by the complainant and it is also to be stated in this case that even a suggestion is put to the complainant “ “. So the inference is that even if the ledger is 5 CRL.A.NO.709/2002 produced, the accused is not going to admit it as correct. So, in the absence of any request to the complainant to produce the document by the accused and in the light of the contention that even if it is produced, it is not correct the question of drawing adverse inference does not arise. So, finding of the court below that on the basis of the adverse inference that presumption under Section 139 of the N.I.Act is rebutted also does not stand to reason. So, I hold that execution of Ext.P1 is proved. The presumption is drawn under Section 139 and there are no materials to hold that the presumption has been rebutted which means that the transaction is proved. Notice is also sent. No reply is sent by the accused. Prosecution has been initiated after complying with all statutory formalities. Therefore, it has to be held that the accused is guilty of the offence under Section 138. Therefore, I set aside the judgment of the trial court and hold that the accused is guilty of the offence under Section 138. 4. The next question to be considered is regarding the sentence. I feel interest of justice can be met by imposing 6 CRL.A.NO.709/2002 a fine on the accused. Therefore, the appeal is disposed of as follows: 1. The order of acquittal passed by the trial court is set aside. 2. The accused is found guilty under Section 138 of the N.I.Act and therefore is convicted and sentenced to pay a fine of Rs.15,000/= (Rs. Fifteen thousand) which on realisation shall be disbursed to the complainant and in default, the accused has to undergo S.I for one month. 3. The accused shall pay the fine on or before 31.7.2009, failing which the trial court shall execute the sentence. The Criminal Appeal is disposed of as above. M.N. KRISHNAN, JUDGE. cl 7 CRL.A.NO.709/2002 M.N. KRISHNAN, JUDGE 8 CRL.A.NO.709/2002 beat