IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 CRL.A.No.1551 of 2003 (C) ------------------------------- ORDER IN CRL.L.P.284/2003 Dated 07/08/2003 ST.2037/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR. .................... APPELLANT: COMPLAINANT -------------------------------- JOHNSON S/O. THATTIL DEVASSY, VALAMUKKU DESOM, P.O. PUTHANPEEDIKA, VADAKKUMURI VILLAGE, THRISSUR TALUK BY ADV. SRI.JIJO PAUL RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. K.K.RAJAN, S/O. KIZHUTHANI KUMARAN, P.O.CHEVOOR, VALLUKKUNNATH DESOM, CHEVOOR VILLAGE, THRISSUR DISTRICT 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31 BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1551 of 2003 ------------------------------------------------ Dated this the 3rd day of January, 2008 JUDGMENT The appellant is the complainant in S.T.2037/2000 on the file of the Judicial First Class Magistrate's Court-II, Thrissur. He filed the said complaint complaining of commission by the first respondent of an offence punishable under Section 138 of the N.I. Act, after satisfying all statutory requirements for the maintainability of the complaint. The defence contended that Ext.P1 cheque which is the basis for the complaint is one issued by way of security for payment of future subscriptions in the kuri while receiving the prize amount and the appellant who is an employee of the said kuri company has falsely misused one of the cheques so entrusted to file the complaint and that no money is due to the appellant and cheque also Crl. Appeal No.1551 of 2003 -2- was not issued to him. 2. The learned Magistrate who considered the case in the light of the evidence adduced at trial came to the conclusion that there is no evidence that Ext.P1 is issued in discharge of any debt or other liability due to the appellant and further that the presumption under Section 139 of the N.I. Act in favour of the holder of the cheque stands rebutted in the instant case. Consequently, he acquitted the accused under Section 255(i) of the Criminal Procedure Code. 3. The evidence on the side of the appellant consists of oral evidence of himself as PW1 and documentary evidence Exts.P1 to P7 and the evidence adduced by the defence consists of oral testimony of DWs.1 and 2 and documentary evidence Exts.D1 to D6. 4. DW1 the appellant has sworn to his case alone in the complaint that Ext.P1 cheque Crl. Appeal No.1551 of 2003 -3- was being issued to him in discharge of debt due to him from the first respondent namely Rs.40,000/-. Exts.P2 to P6 are dishonour memorandum, copy of notice, postal receipt and postal acknowledgment for acceptance of notice by the first respondent. Ext.P7 is the reply notice. Even in Ext.P7 reply notice, the first respondent has repudiated the case set up in Ext.P4 notice issued by the appellant and has stated that the first respondent and his wife were subscribers in Tradelinks Chitties and Financial Enterprises Pvt. Ltd., Thriprayar; that they prized the kuri and received the prize amount issuing two blank signed cheques by way of security for payment of the future instalments and that the claim in Ext.P4 notice is advanced fraudulently presenting the cheque and getting it dishonoured filling it up with the name of the appellant as the payee and inserting unauthorisedly the amount as Crl. Appeal No.1551 of 2003 -4- Rs.40,000/-. In evidence it has also come out that the appellant is an employee of Tradelinks Chitties and Kuries Pvt. Ltd. of which DW2 is the Chairman. There is no dispute that the first respondent and his wife were subscribers in the kuri conducted by DW2 and that they prized the chitty and received the prize amount. The first respondent on receipt of notice intimating the dishonour of cheque has issued notice also to DW2 and Ext.D4 is the reply thereto wherein DW2 has stated that the Tradelinks Chitties and Financial Enterprises Pvt. Ltd. had no occasion to receive blank cheques as the prize amount was being disbursed on proper security. But however, though the Chairman of the chitty company is examined as DW2, the security that was furnished by the first respondent at the time of receipt of the prize amount has not been produced which if produced would have Crl. Appeal No.1551 of 2003 -5- shown that there was no need to receive blank cheques by way of security for payment of the future instalments. Further, it has also come out in evidence that though the first respondent and his wife defaulted payment of future instalments, despite receipt of Ext.P4 notice, DW2 has not instituted suit for recovery of the defaulted instalments in the kuri from the first respondent or his wife. DW2 has also admitted that the amounts due towards kuri subscriptions from the first respondent and his wife have got barred by the time he was examined in court. 5. The appellant when examined as PW1 has stated that the first respondent was being introduced to him by one Venus and it was the said Venus who recommended for advancing money to the first respondent and that the said Venus has seen the appellant making payment of money to the first respondent when Ext.P1 Crl. Appeal No.1551 of 2003 -6- cheque was handed over to the appellant. Strangely enough the said Venus is not examined as a witness for reasons best known to the appellant. It is also worthy to note that the first respondent was not acquainted to the appellant but for the fact that he was introduced to him by Venus but still no receipt or other record was obtained from the first respondent in evidence of receipt of Rs.40,000/- allegedly covered by the cheque. All these aspects as observed by the court below are strange conduct from the part of PW1/the appellant for which he has no valid explanation. 6. Counsel for the appellant submits that formal proof of execution of cheque has been given by PW1 and that there is presumption under Section 139 of the N.I. Act in favour of the appellant who is the holder and payee of the cheque and that therefore, the court below Crl. Appeal No.1551 of 2003 -7- should not have acquitted the accused under Section 255(i) Cr.P.C. The presumption under Section 139 of the N.I. Act is a rebuttable presumption only and as found by the court below the said presumption stands rebutted in the instant case, by preponderance of probabilities brought out by the evidence in the case. Acquittal of the accused under Section 255(i) of the Cr.P.C in the circumstances deserves only to be confirmed. 7. This appeal is thus devoid of merit and is dismissed. K.P.BALACHANDRAN, JUDGE kns/-