IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 CRL.A.No. 2076 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.856/2009 CC.2724/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT(S): APPELLANT/COMPLAINANT ----------------------------------- V.K.ELDHOSE, VELAMKUZHY HOUSE,PEEKAYS HOUSE NO.33/2323B, P.C.CROSS ROAD,COCHIN-19. BY ADV. SRI.P.SOMACHUDAN NAIR RESPONDENT(S): RESPONDENTS/STATE -------------------------------- 1. T.C.MATHEW, THENNATTIL HOUSE,KATTAPPANA SOUTH P.O., KATTAPPANA,IDUKKI. 2. STATE OF KERALA, REP.BY GOVT.PLEADER. ADV. SRI.K.R.MOHANAN FOR R1 SRI.K.M.SANAL FOR R1 SRI.ANUP T PAUL FOR R1 PUBLIC PROSECUTOR SMT. REKHA.C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2010, ALONG WITH CRA NO. 2080 OF 2009 CRA NO. 2099 OF 2009 CRA NO. 2109 OF 2009 THE COURT ON DELIVERED THE FOLLOWING: sou. K. HEMA, J ------------------------------------------------- Crl.Appeal.Nos. 2076, 2080, 2099 & 2109 OF 2009 -------------------------------------------------------------------- Dated 22nd November, 2010 COMMON JUDGMENT The appellant filed four complaints against first respondent herein alleging offence under section 138 of Negotiable Instruments Act (the Act for short) in respect of 4 cheques issued in the same transaction. The trial court, after a joint trial of all the cases, acquitted the accused. Hence these appeals are filed. Since all the four appeals arise from a common judgment, these appeals are also disposed of by a common judgment. 2. According to allegations in the complaint, accused borrowed an amount of Rs.8,00,000/- on 27.07.2002 from the complainant and towards repayment of the said amount, he issued four cheques Exts.P1 to P4 dated 27.10.2002 for Rs.2,00,000/- each, drawn on the account of accused with the Bank. An agreement dated 27.7.2002 (Ext.P14) was executed between complainant and the accused, evidencing these facts. The cheques on presentation, were dishonoured as per Ext.P5 and Crl.A. No.2076, 2080, 2099 & 2109/09 2 Ext.P6 for “insufficiency of fund”. A lawyer notice was issued, demanding payment, but he did not pay the amount though a reply was sent. Hence, four complaints were filed in respect of each of the cheques. 3. Accused filed a petition for joint trial and it was allowed. Evidence was recorded in CC.2721/2003. To prove prosecution case, PW1 and 2 were examined on the side of prosecution and Exts.P1 to P15 were marked. Accused examined DW1 to DW3 and marked Exts.D1 to D15. Exts.X1 to X10 were also marked. The trial court on consideration of evidence in detail, found that the case set up by accused is more probable and acquitted accused. 4. Heard both sides. Perused the records. Learned counsel for the appellant vehemently contended that though trial court found that burden is on the accused to rebut the presumption, trial court did not enter any finding that accused rebutted the presumption in favour of the complainant. Learned counsel for the appellant also argued on the basis of decision reported in (AIR 1999 SC 49) Sanspal Singh Vs. State of Delhi that presumption is to be rebutted by the accused but it was not done. 5. It is also argued that trial court went wrong in holding that complainant did not examine any witness to prove handing over Crl.A. No.2076, 2080, 2099 & 2109/09 3 of two cheques etc. In fact appellant examined two witness to show that he received money for giving loan to accused etc. The evidence of PW1 coupled with the documentary evidence was more than sufficient to hold that appellant discharged his burden of proof. Learned counsel for appellant argued that trial court committed a serious illegality in holding that appellant failed to prove insufficiency of fuds. Ext.P5 and Ext.P6 are dishonour memos and there is also evidence of PW1 to hold that cheque was dishonoured, due to insufficiency of funds. The accused did not also deny the fact of “insufficiency of fund” in his account in the reply notice. The reply notice is produced before this Court, along with affidavit and a petition to accept it as additional evidence, which will establish accused's failure to deny “insufficiency of funds” and hence, accused cannot be acquitted on the ground that appellant failed to prove insufficiency of funds, it is argued. 6. Learned counsel for the accused-respondent argued that trial court specifically entered a finding that case set up by accused is more probable and that cheques are not supported by consideration. The accused discharged his burden to rebut presumption in respect of consideration. It was pointed out that several facts are brought out in the evidence of PW1 to indicate Crl.A. No.2076, 2080, 2099 & 2109/09 4 that he would not have handed over Rs.8,00,000/-, as alleged by him. The evidence given by PW1 is discredited, by the documentary evidence produced in this case, it is argued. 7. Learned counsel for accused-respondent further argued that a reading of the notice issued by complainant itself will reveal that it was based on Ext.P5 and Ext.P6 dishonour memo that the cheques were dishonoured for insufficiency of fund. But, a reading of Exts.P5 and P6 would reveal that no such reason was shown in either of those documents. It is also submitted that original of reply notice was not produced during trial or even before this Court and the copy cannot be received in evidence at the appellate stage. 8. On hearing both sides and on going through the evidence and records, I find that firstly, the arguments raised in respect of “insufficiency of funds” can be dealt with. The case of the complainant is that he was informed by his Bank that cheques were returned for “insufficiency of fund” in the account of accused. But no document is produced from the accused's Bank to show that the cheques were dishonoured for either of the reasons stated in Section 138 of the Act. It can also be seen that even in the proof affidavit filed by complainant, appellant had no case that any Crl.A. No.2076, 2080, 2099 & 2109/09 5 information was received from the accused's Bank that cheques were dishonoured for want of sufficient fund. 9. A reading of Section 138 of the Act reveals that to constitute an offence under the said section, prosecution has to establish that the cheque was returned unpaid by the Bank due to either of the two reasons stated therein. The “Bank” referred to in Section 138 is the Bank, in which, accused is maintaining his account. There must be evidence to show that said bank returned the relevant cheques unpaid for the two reasons specified in Section 138 of N.I Act. If there is no such evidence, accused cannot be convicted for offence under section 138 of N.I Act. 10. Exts.P5 and P6 are the only documents produced to prove that the Bank dishonoured the cheques for insufficiency of fund. A perusal of Exts.P5 and P6 reveals that those are memos issued by complainant's Bank stating that the said Bank was unable to obtain payment of the cheques from accused's Bank. The endorsement is that “amount could not be obtained” from accused's Bank. Though it is stated in Exts.P5 and P6 that such inability was for the reason given in the memo attached thereto, no such memo was attached to Exts.P5 and Ext.P6. No reason is also stated in any of the documents produced that the cheques Crl.A. No.2076, 2080, 2099 & 2109/09 6 were dishonoured by drawers Bank for “insufficiency of funds”. 11. There is total lack of evidence to prove that cheques produced in this case were returned unpaid, for reasons stated in Section 138 of the Act by the Bank, in which, accused was maintaining the account. If the prosecution fails to prove that drawer's Bank returned the relevant cheque due to either of the two reasons stated in section 138 of the Act, the drawer cannot be convicted for offence under Section 138 of the Act. The inability of a complainant's bank to obtain money from drawer's bank is absolutely irrelevant to prove the requirement under section 138 of the Act regarding the reason for dishonour. 12. Learned counsel for the appellant relied upon a decision of the Division Bench of this Court in Devan Vs. Krishnan Menon 2010 (2) KLT 397 and argued that a Division Bench of this Court held that a banker will be interested in protecting a valued customer of his and it may not readily make an endorsement that funds are insufficient. Some other expressions will be skillfully employed by the Banker to avoid inconvenience to a valued customer, even when funds are insufficient. Culpability under section 138 of Negotiable Instruments Act cannot obviously be left entirely to the Banker who makes the endorsement while Crl.A. No.2076, 2080, 2099 & 2109/09 7 dishonouring the cheques and therefore, this Court need not give much value to the endorsement made in dishonour memo, it is strongly argued. 13. According to learned counsel for appellant, evidence of PW1, coupled with absence of denial from the side of accused regarding sufficiency of fund can lead to a conclusion that there was no sufficient fund in the account of the accused, it is submitted. On going through the decision referred above I find from paragraph 34 that though certain observations are made regarding the Banker's anxiety to support a valued customer etc., the Division Bench also observed that it is for the court to decide on the basis of the materials available before it as to what was the actual and real cause of dishonour. But there is total lack of evidence in this case to prove that accused's banker returned the cheques unpaid for any of the reasons stated in Section 138 of the Act. 14. It is needless to say that it will not be difficult for the complainant to produce evidence from accused's bank itself to prove that the cheques were returned unpaid, for either of the two reasons stated in Section 138 of the Act. The extract of account ledger from the accused's bank would be more than sufficient to Crl.A. No.2076, 2080, 2099 & 2109/09 8 establish that accused had no sufficient fund in his account, in order to prove that accused had an account, or that funds were insufficient. The fact that the cheque was returned unpaid due to insufficiency of funds can be proved by production of the relevant extract issued under Banker's Book Evidence Act. It is not even necessary for the accused to adduce evidence by examining any officials from the Bank. No attempt was made by complainant to prove the relevant fact. 15. However, learned counsel for appellant submitted that a copy of the reply notice is produced in this appeal to be admitted in evidence and marked as Ext.P16. According to him, the reply notice will prove that accused did not deny that there was insufficiency of fund. While considering the above argument I find that the reply notice produced before this Court is purported to be a photocopy of the original reply notice. But it does not even contain the signature of the lawyer, who purportedly issued the notice on behalf of accused to complainant. 16. The appellant has no reasonable explanation what happened to the original of the document. In the affidavit, all what is stated is that original of the said record was handed over by appellant to the counsel, who appeared for him, for production Crl.A. No.2076, 2080, 2099 & 2109/09 9 along with other records. Only when an appeal was filed, he came to know that the said document was not produced in court. Still, appellant has not made out any legally valid ground to admit alleged photo copy of reply notice. 17. Section 391 of the Code lays down that in dealing with any appeal, the appellate court, if it thinks, additional evidence is necessary, it shall record its reason and may either take such evidence or direct it to be taken by a Magistrate, or by the appellate court itself. In this case, the document produced cannot be admitted in evidence under any of the provisions of the evidence Act. There is a mode in which a document can be admitted in evidence. 18. Proof of documents is ordinarily by primary evidence as per section 64 of the Evidence Act, except in certain cases. Appellant has not substantiated that this case falls under any such exceptions. Section 62 of the Evidence Act lays down that primary evidence means the document itself produced for inspection of court. But the relevant document which is a reply notice is not produced for inspection of court as stated in section 62. Of course, secondary evidence may be given of the contents of the documents, as per section 65 of the Evidence Act in cases fall Crl.A. No.2076, 2080, 2099 & 2109/09 10 under sub clauses (a) to (g). 19. Secondary evidence means and includes those stated in section 63 of the Evidence Act. A reading of Section 61 to 65 shows that secondary evidence can be admitted in evidence, only subject to which is stated in those provisions. In this case, appellant has not satisfied the requirements to admit secondary evidence, it is not even satisfactorily explained why primary evidence is not produced. Hence, the document produced as the purported reply notice cannot be admitted in evidence, as per law. Hence, I am not inclined to admit the same in evidence under section 391 of the Code. 20. Learned counsel for appellant submitted that in the affidavit it is stated that original of the record is not traceable. It is not sufficient if a party merely says that the document is not traceable to admit a photocopy of a document in evidence. The court must be satisfied that such photocopy is a true copy of the document sought to be proved. Appellant has no case that it is a true photocopy of the original. I have already mentioned that it does not even contain signature of the lawyer, though it is purported to be a photo copy of the reply notice. 21. The appellant has not even stated in the affidavit from Crl.A. No.2076, 2080, 2099 & 2109/09 11 whose custody the document is procured and produced. The requirements under Section 65 of Evidence Act is not satisfied to admit the said document as secondary evidence, in the absence of primary evidence. In such a circumstances, the arguments raised based on rely notice can only be rejected. 22. Now coming to the next limb of the argument that there is no finding of trial court that appellant has rebutted the presumption, I find that in so many words, trial court made it clear that the case set up by accused is more probable. The mere omission on the part of the trial court to specifically state in he order that 'presumption is rebutted by accused' will not be sufficient to set aside an order of acquittal. The trial court has considered the evidence and various other facts and adduced on record and various other facts and circumstances to hold that as no inference can be drawn that accused issued Ext.P1 to P4 cheques in favour of the complainant for consideration of Rs.2,00,000/- each. 23. The trial court also found that the complainant would not have the source to raise Rs.8,00,000/- to be given to accused. The accused was also able to establish that the case set up by complainant that he raised the amount from the two persons and Crl.A. No.2076, 2080, 2099 & 2109/09 12 discharged the amount are absolutely false, in the light of Exts.D10, D11 and D7 series and evidence of DW2. The trial court also held that there was no probability for complainant to advance Rs.8,00,000/- to the accused and hence it would not have been probable to the accused to execute the cheques Ext.P1 to P4 to discharge the amount. I do not find any infirmity or impropriety in the findings of trial court. The reasons shown in the impugned order to acquit the accused are only sound and valid and those do not call for any interference. Therefore, I find no reason to set aside order of acquittal. These appeals are dismissed. Sd/- K. HEMA, JUDGE. Sou. // True Copy// P.A to Judge.