IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 CRL.A.No. 444 of 2003() ----------------------- CC.192/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... APPELLANT(S): COMPLAINANT ------------------------- JACOB JOHN, S/O. YOHANNAN, KALAMPTHIVILA VEEDU, PODIYATTUVILA, ARACKAL VILLAGE. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT(S): ACCUSED & STATE OF KERALA ---------------------------------------- 1. L.PONNAMMA D/O. VELU PILLAI, THOTTUPURATHU VEEDU, PERUMANOOR P.O., ARACKAL VILLAGE, (TEACHER, GOVT.L.P.S.) VELLOOPPARA, PEREDOM, CHADAYAMANGALAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.A.NO.444 OF 2003 --------------------------------------------- Dated 20th July, 2010 JUDGMENT Complainant in C.C.192/1997 on the file of Judicial First Class Magistrate-I, Punalur filed this appeal challenging the order of acquittal passed by learned Magistrate. Appellant lodged a complaint alleging that on 20/10/1996 he paid Rs.1,00,000/- to the first respondent and first respondent issued Ext.P1 as a post dated cheque drawn in her account maintained in Service Co-operative Bank, Arakkal Branch and when the cheque was presented for encashment, it was dishonoured under Ext.P3 for want of sufficient funds and it was intimated to the appellant under Ext.P2 and immediately CRA 444/03 2 he sent Ext.P4 notice demanding the amount covered by the dishonoured cheque. But first respondent did not pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. First respondent pleaded not guilty. Appellant was examined as PW1 and Exts.P1 to P11 and X1 to X3 were marked on his side. First respondent examined five witnesses and marked Exts.D1 to D5. Learned Magistrate on the evidence found the first respondent not guilty and acquitted him. It is challenged in the appeal. 2. Learned counsel appearing for the appellant and first respondent were heard. 3. Argument of the learned counsel appearing for the appellant is that learned Magistrate has found that Ext.P1 cheque was issued by the first respondent and presumption CRA 444/03 3 provided under Section 139 of Negotiable Instruments Act is also available but holding that civil Court by Ext.D4 judgment in O.S.424/1997 disbelieved the case of the appellant and suit for realisation of the amount covered by the cheque was dismissed, first respondent is not guilty of the offence. Argument of the learned counsel is that learned Magistrate erred in relying on Ext.D5 judgment of the civil Court. Relying on the decision of the Apex court in K.G.Premhanker v. Inspector of Police & Another (2002 (8) SCC 87) it was argued that civil court judgments should not have been looked into by the learned Magistrate and on the evidence on record first respondent should have been convicted. It is therefore, argued that the order of acquittal is illegal and is to be set aside. CRA 444/03 4 4. Learned counsel appearing for the first respondent argued that on proper appreciation, evidence establish that first respondent did not borrow the amount and did not issue Ext.P1 cheque as alleged and therefore the order of acquittal is perfectly legal. 5. Ext.P1 cheque according to the complainant was issued as a post dated cheque when first respondent borrowed Rs.1,00,000/- from the appellant. Appellant is denying the borrowal as well as issuance of the cheque. Though learned counsel argued that, evidence of PW1 establishes execution of the cheque as found by the learned Magistrate, on going through the evidence, I cannot agree. Complaint shows that case of the appellant, when the complaint was lodged, was that on 20/11/1996 appellant paid Rs.1,00,000/- and CRA 444/03 5 then first respondent issued Ext.P1 cheque dated 30/11/1996 for that amount. Complaint does not disclose that there was a request for that amount earlier to 20/11/1996 or that there was an agreement between the parties to grant a loan on 20/11/1996. When examined as PW1, case of the appellant in chief examination itself is that he knew the respondent as a teacher who used to come to his textile shop and purchase clothes and she borrowed Rs,1,00,000/- and issued the dishonoured cheque. PW1 was cross examined on the source of money allegedly paid, his capacity to pay the amount as well as the issuance of the cheque. Evidence of PW1 when he was cross examined at the first part of cross examination was that he had paid the money out of the cash kept at his house, though he had accounts in two different banks. CRA 444/03 6 According to PW1,it was his profit in the textile business for that month. PW1 deposed that first respondent asked for a loan one week earlier and he paid the amount on 20/10/1996 and then Ext.P1 cheque was issued as a post dated cheque. When he was further cross examined, PW1 deposed that he granted the loan to first respondent, on the promise of the first respondent that the amount will be paid within one month. PW1 also deposed that the dishonoured cheque was written and brought to him and handed over. When PW1 was cross examined further, his version was that when first respondent asked for a loan of Rs.1,00,000/- he was having only Rs.55,000/- at that time and he paid Rs.1,00,000/- utilizing Rs.30,000/- which was received by him by sale of pepper and Rs.10,000/- being the value of rubber sheets sold and together CRA 444/03 7 with Rs.50,000/- which was originally with him. This evidence contradicts the evidence of PW1 in the former part that Rs.1,00,000/-, which was paid to first respondent, was the amount received from his business for one month. There is no case for PW1 that when first respondent asked for a loan of Rs.1,00,000/-, one week prior to payment, she asked for a period of one month to pay that amount or that appellant expressed his willingness not to claim any interest or that appellant agreed that the amount could be paid on a particular day. If that be the case, even if it is taken appellant had promised to pay that amount after one month, first respondent could not have written and signed the cheque from her house and brought to the appellant as a post dated cheque, for exactly the amount borrowed as a post dated cheque, as CRA 444/03 8 there was no agreement with regard to the relinquishment of the interest payable or period of payment. In such circumstances, evidence of PW1 that when Rs.1,00,000/- was borrowed first respondent brought a written cheque for Rs.1,00,000/- and that too which could be encashed on 30/11/1996 cannot be believed. Added to this, appellant has no case that Ext.P1 cheque was written or signed in his presence. First respondent did not admit that she executed Ext.P1 cheque or issued it to the appellant. Her case is only that she had a transaction with Papachan and as demanded by Pappachan, she had handed over the blank cheques and subsequently one such cheque was misused by the appellant. That case cannot be treated as an admission of execution of the cheque. If that be so, to draw presumption available under Section 118 and CRA 444/03 9 139 of Negotiable Instruments Act, appellant has to establish that the cheque was issued by the first respondent. It is for the appellant to prove that cheque was written and signed by the first respondent or she signed Ext.P1 cheque which was written earlier admitting its contents. Evidence of PW1 does not even show that cheque was signed or written in his presence. Therefore, the question of drawing presumption under Sections 139 or 118 of Negotiable Instruments Act does not arise on the facts of the case. 6. In such circumstances, it is for the appellant to prove that Rs.1,00,000/- was paid and Ext.P1 cheque was issued towards its repayment. As stated earlier, when there was no case for the appellant that there was an agreement between appellant and first respondent for payment of the amount with or CRA 444/03 10 without interest and that too on a particular day, it cannot be believed that first respondent will write and bring a cheque to the house of the appellant to receive the money. Added to this, the inconsistent case of the appellant with regard to the payment of the amount casts serious doubt on his evidence that he had kept Rs.1,00,000/- in cash at his house to be paid to first respondent. When the evidence is appreciated, irrespective of the question whether Ext.D4 judgment of the civil court is binding or not, the order of acquittal cannot be interfered. Ext.D4 judgment shows that suit was dismissed on the failure of the appellant to prove the transaction. Even though PW1 asserts that at the time when the amount was allegedly borrowed by the first respondent, one Leelamma and Thomas were present and they witnessed the CRA 444/03 11 transaction, none of them were examined. In such circumstances, I find no reason to interfere with the order of acquittal, though for different reasons than stated by the learned Magistrate. Appeal fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.