IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 264 of 2007(C) ------------------------------ CRA.290/2005 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.229/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- M.A. JACOB, RESIDING AT 23/2594, MADATHIL PANAKKAL, PALLURUTHY, KOCHI-6. BY ADV. SRI.K.ABRAHAM LAL RESPONDENT(S):RESPONDENTS/COMPLAINANT & STATE: ----------------------------------- 1. M.A. JOSEPH, RESIDING AT MADATHIL PANAKKAL, EDAKOCHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 SRI.SHAIJAN C.GEORGE FOR R1 SRI.JOHN VIPIN FOR R1 SMT.S.A.SHERLY FOR R1 SMT.K.K.THULACY BHAI FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 264 OF 2007 ------------------------------------------ Dated this the 28th day of November, 2008 O R D E R Revision petitioner was concurrently convicted for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Revision petitioner and the first respondent are direct brothers. While revision petitioner is a carpenter, his elder brother is a driver in Vigilance Department. The case of the first respondent was that revision petitioner issued Ext.P1 cheque drawn in his account maintained in Vyttila branch of State Bank of Travancore for Rs.1,03,616/- towards discharge of a legally enforceable debt. Ext.P1 cheque was presented for encashment through Central Bank, Ernakulam. Under Ext.P2 memo, the cheque was dishonoured for want of sufficient funds. First respondent sent Ext.P4 notice to first respondent demanding the amount covered by the dishonoured cheque. It was received by the petitioner under Ext.P6 acknowledgement card. Case of the revision petitioner is that though he received the envelope it contained only a blank paper and therefore Ext.D1 reply was sent evidenced by Ext.D3 postal CRRP264/07 2 receipt and Ext.D2 acknowledgment card, intimating the counsel who sent Ext.P4 notice on behalf of the first respondent, that he is not aware of the contents of the notice. Contending that by non payment of the amount, revision petitioner committed an offence under section 138 of Negotiable Instruments Act, complaint was lodged. It was taken cognizance. Revision petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P6 were marked. On the side of revision petitioner his wife was examined as DW2 and another witness was examined as DW1. Exts.D1 to D3 were marked. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for two months and a compensation of Rs.1,05,000/-. Petitioner challenged the conviction before Additional Sessions Court, Ernakulam in Crl. Appeal 290 of 2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court in addition to a compensation of Rs.1,15,000/-. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned counsel appearing for first respondent were heard. CRRP264/07 3 3. Learned counsel appearing for revision petitioner relying on the decisions of the Apex Court in Mohanan Vs. Bibhukumar (2003 (2) KLT 825) and this Court in Kamalammal Vs. Mohanan (2006 (3) KLT 972) and Narayana Menon Vs. State of Kerala (2006 (3) KLT 404) and Sivaraman Vs. Vasu (2002 (3) ILR Kerala 50) argued that case of the first respondent is proved to be improbable and Courts below did not properly appreciate the evidence and the conviction is not sustainable. It was argued that if the evidence of PW1 is to be believed, revision petitioner borrowed money for his timber business and at the same time issued Ext.P1 cheque and it is highly improbable that an amount of Rs.1,03,616/- would be borrowed, instead of a round figure and that itself is sufficient to disbelieve the case. It was also argued that though PW1 deposed that Ext.P1 cheque was issued by the revision petitioner at the time of borrowing the amount, he has no case that the cheque was either written or signed in his presence and when revision petitioner denied issuance of the cheque for repayment of Rs.1,03,616/-, the presumption available under section 139 will not help first respondent to prove that Ext.P1 cheque was issued in discharge of a legally recoverable debt. CRRP264/07 4 Learned counsel argued that it is for the first respondent to prove by cogent and credible evidence that revision petitioner had borrowed Rs.1,03,616/- which was repaid under Ext.P1 cheque and when evidence of PW1 is insufficient to prove that fact, Courts below should have rejected the case. Learned counsel also argued that evidence of revision petitioner that Ext.P1 cheque was obtained by first respondent due to the intervention of police is proved by the evidence of DW1 as well as DW2 and therefore the conviction is to be set aside. Relying on the decision of the Apex Court in Dalmia Cement Ltd. Vs. Galaxy Trades & Agencies (2001 (1)KLT 528) and the High Court of Madras in P. Subramaniam Vs. K. Naravana Bhat (AIR 2007 NOC 2209) it was argued that when Ext.D1 reply shows that revision petitioner did not receive any notice demanding the amount covered by dishonoured cheque as provided under section 138 (b) of Negotiable Instruments Act there was no cause of action for the offence and hence the conviction is not sustainable. It was also argued that when, after receipt of the envelope sent at the instance of first respondent by his counsel, revision petitioner intimated the counsel that the envelope did not CRRP264/07 5 contain any notice, first respondent should have sent a notice thereafter or could have presented the cheque and, if again dishonoured, could have sent another notice and the complaint filed without a notice served on the revision petitioner, is not sustainable. 4. Learned counsel appearing for first respondent argued that the revision petitioner admitted his signature in Ext.P1 cheque and also admitted that it was issued to the first respondent and when PW1 was cross-examined, he has no case that Ext.P1 cheque was obtained by coercion or due to intervention of police and instead suggestion was only that it was stolen and the subsequent defence cannot be accepted and Courts below rightly rejected it. It was argued that when signature in the cheque is admitted and it was also admitted that it was issued to first respondent, and revision petitioner did not adduce acceptable evidence to prove that it was not issued towards discharge of an existing debt or liability Courts below were perfectly correct in convicting the petitioner. Learned counsel also argued that when Ext.P4 notice was sent by registered post, the reply sent under Ext.D1 that the notice was not enclosed in the envelope cannot be believed and that plea CRRP264/07 6 was raised only to circumvent the presumption under section 139 of Negotiable Instruments Act and Courts below rightly found that there was a notice and there is no reason to interfere with the findings of the Courts below. Learned counsel finally argued that considering the relationship between the parties who are direct brothers, it is not improbable that when revision petitioner owed a loan of Rs.1,03,616/- and that too obtained promising to repay the same by issuing a cheque for the exact amount and therefore on that reason, case of the first respondent cannot be disbelieved. 5. Though learned Magistrate and the learned Sessions Judge appreciating the evidence accepted the case of first respondent, on going through the entire evidence it is clear that the evidence on record with the broad probabilities were not properly appreciated. Though under section 139 of Negotiable Instruments Act a presumption shall be drawn on admission or proof of execution of a cheque, that presumption can be drawn only when the ingredients provided under section 139 of N.I. Act is established. To draw that presumption first respondent has to establish that Ext.P1 cheque was drawn and signed by the revision petitioner and handed over to the first respondent CRRP264/07 7 towards the discharge of a legal debt or liability as revision petitioner did not admit issuance of Ext.P1 cheque. Though learned counsel appearing for revision petitioner argued that because of the admission of the signature in Ext.P1 as well as the admission that the cheque was issued due to the intervention of the police, as in every case admission of a party is either accepted as a whole or rejected as such. If admission of the revision petitioner is to be accepted the admission as such is to be accepted. If so admission is only that he was compelled to execute the cheque from the police station and that too not towards discharge of an amount borrowed for purchase of timber as canvassed by first respondent but on account of the failure of revision petitioner to pay the instalments due on a loan in which first respondent stood as surety. So long as revision petitioner has no case that Ext.P1 cheque was issued towards discharge of the liability created on account of discharge of the liability outstanding in favour of revision petitioner, admission of the revision petitioner will not help first respondent to prove that Ext.P1 cheque was issued in discharge of a debt or liability. When PW1 was examined, he has no case that Ext.P1 cheque was written and signed in his presence and handed over. What CRRP264/07 8 was stated in chief examination is only that accused had given the cheque. He has not stated anything about the drawing of the cheque. In cross-examination when a suggestion was put, PW1 deposed that cheque was given by the revision petitioner. Even at that stage there is no case that revision petitioner filled up the cheque in his presence and signed it and handed over to him. Therefore evidence of PW1 does not establish the execution of cheque by the revision petitioner. If that be so, when the revision petitioner is not admitting the execution of Ext.P1, the presumption provided under section 139 of N.I. Act will not help the first respondent. Moreover, a perusal of Ext.P1 cheque shows that the date of the cheque is written in a different ink and in a different handwriting compared to the other remaining writings and signature. From a perusal of Ext.P1 cheque it is absolutely clear that date of Ext.P1 cheque was not filled up when Ext.P1 was signed. The evidence of PW1 does not explain how this discrepancy arose. That itself casts genuine doubt regarding the version of PW1. 6. As rightly argued by the learned counsel appearing for revision petitioner, it is highly improbable that revision petitioner would borrow an amount of Rs.1,03,616/- for the CRRP264/07 9 purpose of purchasing the timber for his furniture business. Unless PW1 could establish that revision petitioner was in need of that particular amount, it is highly improbable. Evidence of PW1 is insufficient to probablize the said case. Moreover appreciation of evidence of PW1 establish that it is highly improbable that first respondent would grant a loan of Rs.1,03,616/- by getting a cheque on the same day. It is to be borne in mind that first respondent has no case that Ext.P1 cheque was issued as a postdated cheque. If that be the case the cheque would have been issued on 11.12.2001 itself. Ext.P2 dishonour memo shows that the cheque was presented in the bank within three days from the date of Ext.P1. If in fact revision petitioner could pay Rs.1,03,616/- within three days, it is not known what was the necessity for the revision petitioner to borrow Rs.1,03,616/- for such an adjustment for three days. It also improbablises the case advanced by first respondent. Moreover, evidence of PW1 is that the amount granted as loan was savings of the first respondent during his entire period of service of more than 26 years. It is improbable that PW1 would keep that much money in cash without depositing in the bank, especially when that is his savings for the entire official life. CRRP264/07 10 When all these evidence is appreciated in the proper perspective, it cannot be said that Ext.P1 cheque was issued by revision petitioner towards discharge of any legally recoverable debt or liability. As first respondent did not establish that fact, for that sole reason conviction is to be set aside. 7. Added to this, when Ext.D1 reply sent by the revision petitioner shows that the counsel who sent Ext.P4 notice was intimated by the revision petitioner that he did not receive the contents of that notice, it cannot be said that there was an admission in writing demanding the amount as provided under section 138 (b) of Negotiable Instruments Act. At least when the counsel was intimated by the revision petitioner that he did not receive the contents of the notice, a second notice could have been sent demanding the amount. Even if the first respondent was under the apprehension that the period for sending notice would expire because of the time provided under section 138(b), as observed by Apex Court first respondent could have presented the cheque once again and after it is dishonoured could have sent a notice. As offence under section 138 would be complete only on the failure of the drawer of the cheque to pay the amount, when demanded by a notice as provided under CRRP264/07 11 section 138(b) of the Negotiable Instruments Act and it is not proved that a notice was served and instead Ext.D1 shows that the offence was not complete. On that ground also conviction is not sustainable. Revision is allowed. Conviction and sentence of revision petitioner by the Judicial First Class Magistrate as confirmed by learned Sessions Judge in Crl. Appeal 290 of 2005 is set aside. Revision petitioner is acquitted. Bail bond executed by him stands cancelled. M. SASIDHARAN NAMBIAR, JUDGE Okb/-