IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 CRL.A.No. 28 of 2008 ---------------------------------- CRA.385/1998 of ADDL.SESSIONS COURT, KOZHIKODE .................... APPELLANT/RESPONDENT/COMPLAINANT: M.M. SURESH, PLOT NO.3C, MYSANE APARTMENTS, CORPORATION OFFICE ROAD, KOZHIKODE. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENTS/APPELLANT/ACCUSED & STATE: 1. M. ANANDAN, S/O. SIVARAMAN, AGED 38, MALAYIL HOUSE, CHERUVANNUR, FEROKE POST, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 28 of 2008 --------------------------- JUDGMENT The complainant in C.C.No.514/96 on the file of the Judicial First Class Magistrate's Court-I, Kozhikode is the appellant. The complaint was filed alleging of commission by the first respondent of an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate considered the case in the light of the evidence adduced, which consisted of the oral evidence of PW1 and documentary evidence Exhibits P1 to P5 and Exhibits D1 to D1(e); found that the first respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.60,000/- and in default to undergo imprisonment for a further term of three months. On appeal, the first appellate court reversed the said finding and acquitted the first respondent, who was CRA 28/08 2 the appellant in the said appeal. It is aggrieved by the acquittal of the first respondent, allowing Crl.A.No.385/98, that the appellant/complainant has preferred this appeal. 2. The appellant's case was that the first respondent availed of a personal loan of Rs.50,000/- from him and on demand he issued Exhibit P1 cheque, drawn on the Federal Bank Ltd., Cheruvannur Branch, in discharge of the said liability and the cheque, on presentation, was dishonoured assigning the reason “funds insufficient”; that despite notice intimating dishonour of the cheque and demand of the amount due under the cheque, the first respondent has not paid up the amounts either within the statutory period or ever thereafter and that thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. The first respondent contended that Exhibit P1 cheque is one issued by him blank, by way of security, when he CRA 28/08 3 availed of a loan of Rs.25,000/- from Shreesha Bankers, of which the appellant was the proprietor and that the said cheque was being misused filling up huge amounts therein, to file the complaint. 3. Exhibit D1 series are notices issued by Sreesha Bankers to the first respondent demanding repayment of the amounts advanced by them. In one of the notices, namely in Exhibit D1(b) notice, it was mentioned that if the first respondent did not make payment of the amounts, they will be presenting the cheque given by him. According to the first respondent, he cleared the said debt, but the cheque was not returned under the pretext that it will be returned later and being close relatives (father's brother's son), he did not insist for the return of the cheque. Exhibit D1 series are dated 28.10.1995, 10.11.1995, 12.12.1995, 8.3.1996 and 2.4.1996 respectively. Obviously, therefore, at least till 2.4.1996, the debt due to Sreesha Bankers, of which the appellant was the proprietor, CRA 28/08 4 had not been discharged by the first respondent. Though there is no averment in the complaint as to the date for return of the advance amount, in repayment of which is, allegedly, Exhibit P1 cheque was issued, he has stated, when examined, that he was advancing Rs.50,000/- on 31.1.1996 and that too as interest free loan to the first respondent, being his relative. When the first respondent is one, who was not repaying the loan amount of Rs.25,000/- taken from the bank, of which the appellant was the proprietor despite three notices issued from the bank, it does not stand to reason to believe that the appellant would advance a further amount of Rs.50,000/- to the first respondent. It is further strange that to such a defaulter, according to the appellant, he has advanced an amount of Rs.50,000/- without any record and that the first respondent had even not told him as to when he will return the amount and he also had not demanded the first respondent to CRA 28/08 5 return the said amount, but the first respondent voluntarily came over to his bank and handed over Exhibit P1 cheque in a cover to his staff Safiya, who handed over the same to him. It is too much to believe that the first respondent, who was not making prompt repayment of the amount of Rs.25,000/- taken as advance from the financial institution run by the appellant despite repeated notices, would, voluntarily, without any demand from the appellant, come over to his bank and deliver Exhibit P1 cheque to the staff of the appellant for repayment of the personal loan of Rs.50,000/-, alleged to have been taken by him from the appellant. The notices issued to the first respondent pursuant to the dishonour of Exhibit P1 cheque was being returned unclaimed, it is submitted. If that be so, no adverse inference regarding non issue of reply also can be drawn against the first respondent. CRA 28/08 6 4. Despite the contention of the appellant that the loan transaction with Sreesha Bankers was closed by the first respondent by paying up the amounts and the cheque made mention of in Exhibit D1(b) notice was returned, no record was produced in relation to the said loan transaction, which would have thrown some light, if produced, as to the truth of the contention of either party. The appellant, who was in possession of that document, has withheld the same. That enables adverse inference being drawn against him. 5. The presumption in favour of the payee/ holder under the cheque under Section 139 of the Negotiable Instruments Act is only a rebuttable presumption and in the circumstances of the evidence in the case, the preponderance of probabilities has rebutted the said presumption. Consequently, therefore, there is, absolutely, no evidence to establish that Exhibit P1 cheque was issued by the first respondent to the appellant in CRA 28/08 7 discharge of any legally enforceable debt or other liability. In the circumstances, acquittal of the first respondent by the first appellate court deserves only to be upheld. The appeal, in the circumstances, is devoid of merit and is dismissed. 9th January, 2008 (K.P.Balachandran, Judge) tkv