IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.A.No. 1219 of 2002() ------------------------ CC.275/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT: COMPLAINANT ------------------------- MATHEW M.A., AGED 32, S/O. M.M.ALEXANDER, CHEMPARUTHUMOOTIL HOUSE, PARIYARAM P.O., KOTTAYAM. BY ADV. SRI.C.S.MANILAL SRI.KARJET KODUVATH KOCHUMOL KODUVATH RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. KURIAN, S/O. KURUVILA, KANDARAPPALLIL HOUSE, CHENGALAM P.O., KOTTAYAM. ADV. SRI.J.HARIKUMAR FOR R2 SRI.HARIKUMAR.S. FOR R2 P.P.SRI. C.M. NAZAR FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.1219 OF 2002 ............................................. Dated this the 20th day of August, 2009 J U D G M E N T This is an appeal preferred against the order of acquittal passed by the Chief Judicial Magistrate, Kottayam in C.C.No.275/2000. It is the case of the complainant that the accused had borrowed a sum of Rs.2,75,000/= and towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment returned with the endorsement of stop payment. Thereafter a statutory notice was issued to which, according to the complainant, a false reply was sent. As the amount was not paid, action was initiated under Section 138 of the N.I.Act. 2. The case of the defence appears to be that there was a property transaction between the accused and one Fr. T.A. Jacob and according to the accused, an amount of Rs.1,40,000/= was outstanding in the transaction and therefore as demanded by Fr. T.A. Jacob, he had given a cheque and also a blank signed paper. It is his case that the said cheque had been misused by the complainant to file : 2 : CRL.A.NO.1219 OF 2002 a case of this nature. 3. The trial court, on a consideration of the materials available, found in favour of the accused and acquitted the accused. It is against that decision, the complainant has come up in appeal. 4. The points that arise for determination in the appeal are (1) whether there are sufficient materials to hold the accused guilty under Section 138 of the N.I.Act (2) is there anything to interfere with the decision rendered by the trial court. 5. Points 1 and 2: Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant/complainant submits before me that the court below has given a wrong assumption to arrive at a decision because it had not properly analysed the materials available before it. It is argued by the learned counsel that Fr. T.A. Jacob has been examined as CW1 and his evidence would show that such a cheque was not issued by the accused in favour of him as contended by the accused. Now : 3 : CRL.A.NO.1219 OF 2002 before analysing the other materials, I may like to briefly point out the principle to be followed in a 138 N.I.Act case. So far as 138 N.I.Act cases are concerned, there is always a primary duty and burden cast on the complainant to prove the liability and that the cheque had been issued towards the discharge of the liability. When execution of the cheque is proved, then the presumption as envisaged under Section 139 of the N.I.Act will come into play and therefore unless it is rebutted it will go in favour of the complainant. It is the settled position that mere putting of signature in a cheque does not prove execution of the cheque. What is to be proved is that the accused had issued a cheque in favour of the complainant for the disputed amount. 6. Now, the learned counsel would contend before me that there is no dispute regarding the issuance of the cheque and therefore straight away the presumption can be attracted. It is the specific case of the accused that he had not issued any cheque to the complainant. He would submit that he had no acquaintance with the complainant at all. His specific case is that he had given it to Fr. T.A. : 4 : CRL.A.NO.1219 OF 2002 Jacob. Therefore, the burden lies on the complainant to prima facie establish that the accused had issued a cheque in his favour. Now what is the evidence to prove the same. Admittedly the oral evidence of PW1. 7. PW1 in the chief examination would depose in line with what is stated in the complaint. But when cross examined, the answers given really deserve consideration. According to the complainant, the accused is a friend of him. He would depose that he had not gone to the house of the accused, that he had not seen the house of the accused and that he does not know who are the members of his house. He does not know the phone number of the accused and he does not even know to which sect of the Christian community he belongs. This shows that friendship alleged cannot be believed. 8. The other point is regarding a person advancing a sum of Rs.2,75,000/= to another person. Admittedly as per the evidence of PW1, he had borrowed Rs.1,50,000/= from a friend of him and added the balance from his hand and had given Rs.2.75,000/=. The cheque is dated 19.2.2000. : 5 : CRL.A.NO.1219 OF 2002 The cheque was presented for encashment only in August, 2000. It is always to be stated that men may lie but the circumstances will never. A person who had borrowed a sum of Rs.1,50,000/= from his friend keeps the cheque with him and presents it almost at the end of the 5th month which is returned as payment stopped. This is not the ordinary course of human conduct at all. Though he would say that he has got an over draft facility, he has not proved it by convincing evidence that he had the financial status to advance a sum of Rs.2,75,000/= at that point of time. Now it has also to be stated that Ext.D2 is a stop memo issued by the accused to the bank. It would show that he had purchased some house and he had given a cheque to Fr. T.A. Jacob for Rs.2,75,000/= and had also given the cheque number therein and had requested the bank not to honour that cheque since there is dispute between him and Fr. T.A. Jacob. This document is dated 8.6.2000. The alleged cheque is dated 19.2.2000 and it presented for encashment only in August, 2000. So, the accused cannot be aware of the long delay in presenting the cheque. But he had : 6 : CRL.A.NO.1219 OF 2002 promptly intimated the bank regarding the factum that he had issued a cheque and therefore payment has to be stopped. This also adds in favour of the accused rather than the case of the complainant. 9. The learned counsel for the appellant very strongly contends before me that since the father to whom the cheque was issued had been examined as a court witness and as he had deposed that he had not received any cheque, the case of the accused should be disbelieved. Under ordinary circumstances, this argument is quite appealing and persuasive. But in the facts and circumstance of this case, especially viewed in that background and discussed by me in the earlier paragraphs improbability of the complainant advancing a sum of Rs.2,75,000/= is writ large and therefore one has to hold that mere ipse dixit of CW1 cannot seal the fate of the accused. The father though is expected to be in charge of the religious and spiritual affairs had admittedly acted on behalf of somebody else with respect to an immovable property that too through power of attorney which is not expected of him. At least : 7 : CRL.A.NO.1219 OF 2002 there had been a transaction between the two. I am not inspired to accept the evidence of CW1 in this case. 10. So, from the total analysis of the materials available in this case, I am strongly of the view that the complainant had failed to prove his capacity to advance the sum and the document Ext.D2 shows that the cheque had been issued in favour of Fr. T.A.Jacob and further the conduct of the complaint in not presenting the cheque for encashment for almost a six moths especially in the backdrop that he had borrowed to advance money all shows total suspicion and preponderance of probability of the evidence adduced by the accused as such is in his favour and therefore I am not inclined to disturb the finding of acquittal passed by the learned Magistrate and therefore the appeal fails and it is dismissed. M.N.KRISHNAN, JUDGE cl : 8 : CRL.A.NO.1219 OF 2002