IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.Rev.Pet.No. 3545 of 2008() ------------------------------ CRA.424/2007 of SESSIONS COURT, KASARAGOD CC.933/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S):APPELLANT/ACCUSED ------------------------------------------------- STEPHEN LUKODE, AGED 45 YEARS, KALAPURAKKAL HOUSE, KOVVALPALLY, KANHANGAD P.O., HOSDURG TALUK. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. P.C. SOMAN, AGED 52 YEARS, KERALA STATE BEVERAGE CORPORATION, NILESHWAR, HOSDURG TALUK. ADV. SRI.P.N.PURUSHOTHAMA KAIMAL FOR R2 SRI.P.JAYAKRISHNA KAIMAL FOR R2 BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3545 OF 2008 =========================== Dated this the 21st day of January,2009 ORDER Revision petitioner is the accused and second respondent the complainant in in C.C.933/2005 on the file of Judicial First Class Magistrate Court- I, Hosdurg. He was convicted and sentenced for the offence under section 138 of the Negotiable Instruments Act. Conviction and sentence was confirmed by Sessions Judge, Kasaragod in Crl.A.424/2007. Revision is filed challenging the conviction and sentence. 2. Case of the second respondent in the complaint is that revision petitioner borrowed Rs.1,00,000/- from second respondent and in discharge of the same revision petitioner issued Ext.P1 cheque dated 11.7.2005 which was dishonoured when presented for encashment and inspite of the notice revision petitioner did not pay and thereby committed the offence. Revision petitioner CRRP 3545/2008 2 contended that Ext.P1 cheque was issued as security for a loan which was obtained in 1997 which was repaid in 1999 and Ext.P1 cheque was not issued towards repayment of the amount borrowed as alleged by second respondent. Learned Magistrate and learned Sessions Judge accepted the evidence of PW1 and rejected the defence case and convicted revision petitioner which is challenged in this revision. 3. Learned counsel appearing for the revision petitioner was heard. 4. Learned counsel argued that evidence was not properly appreciated by the courts below. It was argued that as per the complaint the date which the amount was allegedly borrowed was not mentioned and it is only stated that the cheque was issued in discharge of the amount borrowed earlier and evidence of PW1 in chief examination itself is that Ext.P1 cheque was issued as security and not that it was issued towards repayment of the amount. Learned counsel also argued that as per CRRP 3545/2008 3 the evidence of PW1, out of Rs.1,00,000/- allegedly given to the revision petitioner as loan, Rs.30,000/- was withdrawn by second respondent from his account maintained in Federal Bank and Manager of the Federal Bank was examined as DW1 and Ext.D1 the ledger extract was marked which establish that there was no withdrawal of Rs.30,000/- in 2005 before the date of Ext.P1 cheque and therefore courts below should have rejected the case of second respondent and accepted the case of revision petitioner that Ext.P1 cheque was not issued towards discharge of any debt or liability. Learned counsel also argued that courts below erred in holding that if there is a withdrawal by cash cheque, it will not be shown in the ledger extract and pointed out that even if it is a withdrawal by cash cheque, the factum of withdrawal and the balance amount available in the account will be shown on the respective dates and therefore appreciation of evidence was perverse. 5. Learned counsel appearing for second CRRP 3545/2008 4 respondent argued that the defence case is that revision petitioner had borrowed Rs.50,000/- in 1997 and the cheque was issued as security for that loan and it was repaid and if that is correct when the amount is repaid the cheque should have been got back by the revision petitioner and there is no evidence to prove that the amount borrowed was repaid or the debt discharged. Learned counsel therefore argued that Ext.P1 cheque was issued towards repayment of Rs.1,00,000/- borrowed as proved by the evidence of PW1 and there is no reason to reappreciate the evidence as canvassed by the revision petitioner. 6. On going through the evidence of PW1 it is clear that his evidence on the loan should not have been relied on by the courts below. When revision petitioner has a specific case that Ext.P1 cheque was not issued towards repayment of any loan and instead was given as security for a loan and that too obtained in 1997 which was repaid later, to draw the presumption provided under section 139 of CRRP 3545/2008 5 Negotiable Instruments Act, second respondent has to prove that Ext.P1 cheque was issued by the revision petitioner. 7. The evidence of PW1 does not show that Ext.P1 cheque was issued towards repayment of any amount as stated by second respondent. In the chief examination itself his case was that revision petitioner borrowed Rs.1,00,000/- and towards its security Ext.P1 cheque was issued and it contains the signature of the revision petitioner. There is no case for PW1 that the cheque was either written or signed in his presence or that the cheque was written earlier and brought before PW1 and signed in his presence admitting that Rs.1,00,000/- as stated therein is due. Therefore there is no evidence to prove the issuance of Ext.P1 cheque so as to draw the presumption provided under section 139 of Negotiable Instruments Act. 8. Even if it is taken that an initial presumption under section 139 can be drawn, the presumption is only a rebuttable presumption. A CRRP 3545/2008 6 presumption available under section 139 of the Act can be rebutted even without adducing any evidence by the accused, by bringing out materials on cross examining the complainant or by other documentary evidence. The question is whether from the evidence of PW1 it is proved that Ext.P1 cheque was issued towards discharge of the debt or liability of Rs.1,00,000/-. When revision petitioner has a case that he did not receive Rs.1,00,000/-from second respondent at any point of time, it is for the second respondent to prove that revision petitioner had borrowed Rs.1,00,000/-. 9. The date of the loan is not mentioned in the complaint. Even in chief examination he did not mention the date. In cross examination PW1 deposed that the amount was borrowed two months earlier to the date of the cheque and the amount was borrowed with a promise to repay the same within two months thereafter, the cheque was issued towards its repayment. But it is contrary to the version in chief examination that the cheque was issued as CRRP 3545/2008 7 a security. If it is a cheque issued as security, it should have been issued at the time when the amount was allegedly borrowed and not later towards its repayment as stated in cross examination. Whatever it be, when cross examined, evidence of PW1 was that out of Rs.1,00,000/- given to revision petitioner, Rs.30,000/- was withdrawn by him from his account maintained in Federal Bank. PW1 was specifically asked whether his account in Federal Bank will show the withdrawal of Rs.30,000/- PW1 asserted that withdrawal will be shown in his account and eventhough he does not remember the date of withdrawal, that withdrawal was one week earlier to the date of the cheque. First of all, if Ext.P1 cheque was issued after the expiry of two months promised by the revision petitioner, as claimed by PW1, and Rs.30,000/- was withdrawn seven days prior to the date of the cheque, that Rs.30,000/- could not have been paid two months earlier. Moreover, evidence of DW1 the Manager of the Bank with Ext.D1 ledger extract CRRP 3545/2008 8 establishes that there was no withdrawal of any amount in excess of Rs.11,000/- within a period of 20.1.2005 to 1.6.2005. In fact Ext.D1 shows that no point of time any amount in excess of Rs.15,000/- was withdrawn from that account. Therefore this fact itself is sufficient to disbelieve the evidence of PW1 that he had paid Rs.30,000/- out of Rs.1,00,000/- by withdrawing it from his account from the Federal Bank. There is no evidence for second respondent to show that he had that amount to be paid to revision petitioner as deposed by him. Therefore from the materials brought out by cross examining PW1, revision petitioner has established that he did not borrow Rs.1,00,000/- as stated by PW1 or as alleged in the complaint. Therefore Ext.P1 cheque cannot be a cheque issued towards repayment of Rs.1,00,000/- or towards discharge of a debt or liability of Rs.1,00,000/-. Hence conviction of the revision petitioner for the offence under section 138 of N.I. Act is not sustainable. CRRP 3545/2008 9 Revision is allowed. Conviction of the revision petitioner for the offence under section 138 of N.I.Act in C.C.933/2005 on the file of Judicial First Class Magistrate Court as confirmed in Crl.A.424/2007 by Sessions Judge, Kasaragod is set aside. Revision petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006