IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 CRL.A.No. 2224 of 2005(Y) ------------------------------------- [CRL.A.NO.772/2004 OF SESSIONS COURT, KOTTAYAM DTD. 25/06/2005, C.C.NO.1267/2001 OF JUDICIAL FIRST CLASS MAGISTRTE -II,(MOBILE) KOTTAYAM] .................... APPELLANT/SECOND RESPONDENT/COMPLAINANT: ----------------------------------------------------------------------------- GOPAKUMAR, GEETHANJANI, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.C.I.ABRAHAM, SRI.JOSEPH A.VADAKKEL, SRI.GEORGE KARITHANAM VARGHESE, SRI.V.J.JOHN, SMT.BINDU ABRAHAM. RESPONDENTS/APPELLANT/ACCUSED AND STATE: --------------------------------------------------------------------------- 1. E.V.VENUGOPAL, S/O.E.V.VISWANATHAN, ILLAMPALLIL HOUSE, VAZHAPPALLY VILLAGE, CHANGANACHERRY, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.BECHU KURIAN THOMAS, R2 BY PUBLIC PROSECUTOR SRI. ALEX.M.THOMRA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.2224 of 2005 --------------------------------- Dated this the 11th day of August 2011 J U D G M E N T This Crl.Appeal is filed by the complainant challenging the judgment of the learned Sessions Judge as per which the order of conviction passed by J.F.C.M-II (Mobile), Kottayam was set aside and acquitted the accused for the offence under Sec.138 of the N.I.Act. The case of the complainant is that the accused owed an amount of Rs.50,000/- and to discharge that debt/liability Ext.P1 cheque was issued. It was dishonoured with the endorsement 'stop payment'. Notice was issued to the accused as required under the proviso (b) to Sec.138 of the N.I.Act. It was replied by the accused stating that the amount due to the complainant was discharged and that no amount was due to be paid to the complainant. 2. The complainant got himself examined as PW1 Crl.A.No.2224 of 2005 -: 2 :- and Exts.P1 to P7 were marked. The accused got himself examined as DW1. Besides DW2 was examined and Exts.D1 to D16 series were marked on the side of the defence. The learned Magistrate found that the plea of discharge put forward by the accused stood unsubstantiated and since Ext.P1 was proved to have been executed by the accused he was found guilty of the offence under Sec.138 of the N.I.Act and thus he was convicted by the learned Magistrate. 3. The learned Sessions Judge re-appreciated the evidence and found that there was sufficient materials to hold that the plea of discharge put forward by the accused is reasonable and acceptable. It was found, appreciating the evidence on the side of the accused, on the preponderance of probabilities, that the accused discharged his burden under Sec.139 of the N.I.Act and hence the appeal was set aside. 4. The learned counsel for the complainant/appellant submits that the learned Sessions Judge was not justified in Crl.A.No.2224 of 2005 -: 3 :- acting upon the self serving statements made by the accused in the account books maintained by himself without any supporting voucher or receipt. It is argued that though the accused had ventured to make entries in the account books for about four years he did not think it fit to obtain atleast a single receipt or voucher from the complainant indicating payment of atleast one instalment as stated by the accused. So much so, the learned counsel submits that the entries in the account books should not have persuaded the learned Sessions Judge to hold the case against the complainant. It is further submitted that the evidence given by DW2, the Sales Tax Officer also does not inspire confidence especially because during the relevant time, it was not DW2 who was the Officer-in-charge of that particular circle. It is further submitted that there is discrepancies in the seals affixed on the account books and as such it cannot be held with certainty that these account books were actually verified by the officers of the Sales Tax Crl.A.No.2224 of 2005 -: 4 :- Office during the relevant period. The learned counsel submits that it was easy for the accused to prepare a statement as contained in Ext.D9. It is further submitted that though stop memo was issued to the accused by the Bank, no reason whatsoever was stated by him for issuing that stop memo. It is further argued that though the accused wanted to contend that Ext.P1 cheque was drawn on a cheque leaf issued to the complainant by the Bank, in the year 1997, instead of summoning the Bank Officer to produce the cheque issue register, only a copy was produced which should not have been relied upon by the learned Sessions Judge. 5. The evidence would show that PW1 and accused are relatives. According to the complainant, the accused borrowed Rs.50,000/- in the year 2001 and it was to discharge that amount Ext.P1 cheque dated 20.8.2001 was issued by the accused. But on the other hand the accused would contend that he had borrowed Rs.50,000/- from the Crl.A.No.2224 of 2005 -: 5 :- complainant on 7.8.1997 and the accused started repayment of the amount at the rate of Rs.1,500/- from 11.10.1997 onwards. Since the accused admitted that he had borrowed Rs.50,000/- and that a cheque was also issued by him to discharge that debt, the burden is entirely on him to rebut the presumption under Sec.139 of the N.I.Act. Now the crucial question is whether the plea of discharge put forward by the accused could be substantiated by the accused by preponderance of probabilities. 6. Ext.D1 is the copy of assessment order for the year 1997-'98 issued by the Sales Tax Officer, Changanacherry. Exts.D2 to D6 are the day books kept by the accused which according to him was maintained in the usual course of business. Those account books show entries relating to this transaction for the period from 11.10.1997 to 21.3.2002. It is pointed out that in page No.2 of Ext.D2 book, the borrowal of Rs.50,000/- from the complainant was noted by the accused. Therefore, according to the defence, Crl.A.No.2224 of 2005 -: 6 :- had it been not true the fact that he had borrowed Rs.50,000/- from PW1 could not have been entered in the account book of 1997. But in order to note the correct state of affairs regarding the credit and debit, the amount borrowed was shown and the monthly instalment payments of Rs.1,500/- etc. were mentioned in the account books. The fact that these account books were produced before the Sales Tax Officers during the relevant period can be seen from the seals affixed on the account books. According to the complainant, the cheque was issued in the year 2001 but the accused was making entries from October 1997, nearly four years prior to the date of Ext.P1. Therefore, the correctness or genuineness of entries made in those account books continuously at undisputed point of time cannot be doubled at all. True, there is force in the argument made by the learned counsel for the complainant that there would be no difficulty for a clever and cunning man to make such entries but the fact that it was continued Crl.A.No.2224 of 2005 -: 7 :- to be done even four years prior to Ext.P1 would outweigh the contention raised by the appellant/complainant. The contention that such entries were made by the accused in the account books only to ward off an action under Sec.138 of the N.I.Act cannot be sustained. 7. The learned Sessions Judge meticulously examined all these aspects and found that the case set up by the defence regarding the plea of discharge is reasonable and acceptable by the yardstick of preponderance of probabilities. It is also worthwhile to note that even at the earliest opportunity, namely, in the reply notice (Ext.D9) sent by him itself the details of the repayments made by him were mentioned. That also would go a long way against the contention raised by the complainant that it was a subsequent invention made by the accused to thwart the complaint under Sec.138 of the N.I.Act. It is also pointed out that Ext.D12 which is a copy of the inspection report dated 18.8.1998 prepared by the Crl.A.No.2224 of 2005 -: 8 :- Sales Tax Officers also shows that they had inspected the account books maintained by the accused. Therefore, relying on these factors, the learned Sessions Judge found that the plea of discharge put forward by the accused is not a subsequent thought nor are the documents created subsequently to bolster up a plea of discharge. On a resurvey of the entire evidence, I do concur with the view taken by the learned Sessions Judge that the accused has discharged the burden cast on him under Sec.139 of the N.I.Act. Thus, this appeal is found to be devoid of any merit and is hence dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt