IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 CRL.A.No. 793 of 2000() ----------------------- CC.282/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT/COMPLAINANT: ----------- MELVIN JOSEPH, MANJU COTTAGE, PUTHEMTHOPPU.P.O, NEAR ST. XAVIERS COLLEGE, THUMPA, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP RESPONDENTS/RESPONDENTS: ------------- 1. THE STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. KANTHIMATHI, AGED 42, D/O.ARUMUGHAM PILLAI, W/O.RAVEENDRAN, QUARTERS NO.D44, RAJ BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR, SRI.T.J.AMBOOKAN SRI.V.AJAKUMAR SRI.T.M.CHANDRAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ========================== Crl.A.No. 793 of 2000 ========================== Dated this the 26th day of February, 2008 JUDGMENT The appellant is the complainant in C.C.No.282/92 on the file of the Judicial First Class Magistrate's Court-V (Special Court for Marklist cases) Thiruvananthapuram. The appeal is filed with leave assailing the acquittal of the 2nd respondent under Section 255(1) Cr.P.C. of offence punishable under Section 138 of Negotiable Instruments Act. 2. Appellant filed the complaint in the court below alleging, inter alia, that the 2nd respondent is residing in Quarter No.D.44, Raj Bhavan, Vellayambalam, Thiruvananthapuram with her husband, who is a driver in Rajbhavan Thiruvananthapuram; that she borrowed a sum of Rs.3 Lakhs from the complainant and in discharge of that liability she issued Ext.P1 cheque drawn on her account at the Bakery Junction branch of State Bank of Travancore, making the appellant to believe that it would be honoured when presented; that on presentation Crl. A. No. 793/2000 -2- of the cheque for encashment, it was dishonored by the drawee bank under Ext.P2 memo assigning the reason "funds not sufficient", that thereupon Ext.P3 notice was caused to be issued through lawyer to the 2nd respondent intimating her of dishonour of the cheque and demanding payment of the amounts covered by the cheque; that though the said notice was received by the 2nd respondent under Ext.P3(a) postal acknowledgment card on 19.3.1998, she has not paid up the amount either within the statutory period or ever thereafter and that thereby, she has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On appearance of the 2nd respondent in the court below pursuant to receipt of summons she was served with copies of all relevant records in the case and was questioned by the Magistrate reading over the particulars of the offence and explaining it to her. Thereupon, she pleaded not guilty and consequently a trial of the case was conducted by the court below. 4. On the side of the complainant, he was examined as PW1 and Exts.P1 to P4 were got marked in evidence. Crl. A. No. 793/2000 -3- On the complainant closing his evidence, the 2nd respondent was questioned under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against her and maintained that she is innocent. According to her, from 1984 onwards she is bedridden for reason of ailment to back bone and that she had heart attack as well and that after being bedridden she does not move out at all. On the defence side, her husband has given evidence as DW1 and got marked in evidence Exts.D1 to D14, which undoubtedly show that the 2nd respondent is having several ailments from 1984 onwards. However, the fact of her ailment has no bearing at all as far as availing of loan is concerned, as she had appeared before the court below for questioning under Section 313 Cr.P.C. and the appellant has no case also that amount was paid in advance for the treatment of the 2nd respondent. However, after his evidence was closed, DW1 was recalled and a reply notice issued through lawyer of the 2nd respondent to Ext.P3 notice, was marked as Ext.P4. 5. The court below considered the case in the Crl. A. No. 793/2000 -4- light of the evidence adduced as aforesaid; disbelieved the case of the complainant and acquitted the 2nd respondent under Section 255 (1) Cr.P.C. Hence this appeal with leave by the aggrieved complainant. 6. It is vehemently contended by the learned counsel for the appellant that the contention of the 2nd respondent, while issuing reply notice, was to the effect that the 2nd respondent lost a hand bag containing some cheque books and other records during 1993 and that the appellant, who has come into possession thereof, has, in connivance with one of his close relatives, forged a cheque leaf, which is Ext.P1 cheque for Rs.3 Lakhs and presented it and got it dishonoured, whereas the suggestion put to PW1 in cross examination is as to whether the appellant's wife, who is having close contact with the house of the 2nd respondent, has some how stolen a cheque leaf from the 2nd respondent's house and presented it for encashment manipulating the said cheque leaf, forging the signature of the 2nd respondent. He further contends that the fact of dishonour of Ext.P1 cheque intimated vide Ext.P2 memorandum was for reason of insufficiency Crl. A. No. 793/2000 -5- of funds and that is suggestive of the fact that the signature in Ext.P1 cheque is that of the 2nd respondent herself and that the court below was not justified in disbelieving the case of the appellant and acquitting the 2nd respondent. 7. It is true that the contentions taken in Ext.P4 reply and the contentions taken in the course of the cross examination by suggestive questions put to PW1 as to the manner in which the cheque leaf came into the hands of the appellant are not consistent. But, it has to be borne in mind that when a person cannot definitely say as to how his cheque happened to come into possession of another for the purpose of lodging a complaint, suggestions can be put only based on probabilities to deny the issuance of cheque and hence the inconsistency in the suggestions made with the reply issued by the lawyer. The suggestion made by the lawyer in cross examination of PW1 cannot be taken to hold that it is the defence case and that one being inconsistent with and revolting to an earlier suggestion the entire case has to be disbelieved. Further, the contention that when the cheque was Crl. A. No. 793/2000 -6- dishonoured for reason of insufficiency of funds it has to be presumed that by implication the signature of the party tallies with signature of the account holder and that there is therefore corroboration, cannot be accepted. When there is no sufficient funds at all in the account, it is the practice for the banks to dishonour the cheque assigning the reason of insufficiency of funds. The question of forging the signature, manipulation of the cheque etc. requires to be considered only in the event of funds being sufficient to honour the cheque and not when there is no sufficient funds in the account. 7. The evidence of PW1, which is consistent with his case alleged in the complaint, is that during January 1998 the 2nd respondent borrowed an amount of Rs.3 Lakhs from him and on the same day she issued Ext.P1 cheque dated 2.3.1998 in discharge of the said debt. This shows that the amount was being lent for a period of two months. The appellant has no case that the loan was advanced interest free. Even if 6% interest is calculated for two months, it will work out to Rs.3,000/-. There is no explanation as to whether Crl. A. No. 793/2000 -7- the interest was to be paid subsequently or as to what else was the arrangement between the parties. Ext.P1 cheque is filled up in ink using fountain pen whereas the signature seen in the cheque is one affixed using a dot pen. The signature appears to be that of a person who is not having a good handwriting, whereas filling up of the amounts both in figures and in words and filling up of the name of the payee and date in the cheque are by a person who has got a good and developed handwriting. This obviously shows that the person, who has filled up the cheque, is not the person who has signed the cheque. The cheque was being brought signed and therefore PWI is unable to say as to whether the signature seen in Ext.P1 cheque is that of the 2nd respondent herself. He has also deposed in cross examination that the cheque was being brought written up and therefore he is not able to say even as to in whose handwriting the contents in the cheque were written up. PW1 has further admitted that there is no record to show that he was having Rs.3 Lakhs with him, though he denied the suggestion that he was not having Rs.3 Lakhs with him. According to him, his wife Crl. A. No. 793/2000 -8- brought the amount from her house and he was receiving that amount from his wife and advancing to the 2nd respondent and that his wife obtained Rs.3 Lakhs from her house about one week before the amount was being advanced to the 2nd respondent. If that be so, the wife of the appellant is a material witness to the transaction and she should have given evidence to prove the case rather than calling upon the court below to believe the testimony of the appellant that his wife got Rs.3 Lakhs from her house and he got it from his wife and paid it to the 2nd respondent. According to the appellant, the 2nd respondent is a family friend of his wife and she used to come over to the house of his wife and his wife also used to go to the house of 2nd respondent. In cross examination of DWI, however, nothing is asked as regards the contentions set up by the 2nd respondent in the reply notice or in cross examination of PW1. It is also brought out in cross examination that in his house other than DW1 himself, his wife as also his wife's mother are residing. It suggests that the wife of the appellant and the 2nd respondent was having contacts and it could be true Crl. A. No. 793/2000 -9- that they mutually used to go to the house of the other. Hence, naturally, when a doubt arises that the cheque might have been taken away by the wife of the appellant for bringing into existence Ext.P1 cheque, that cannot be said to be out of place. The contention of the counsel for the appellant that if at all cheque books were lost stop payment instructions should have been given to the bank is not a matter for consideration by this Court in the circumstances of this case as people react differently when placed under similar situations. However, even in case the contention that cheque books were lost is incorrect, it need not necessarily be within the knowledge of the 2nd respondent that the wife of the appellant has taken a cheque leaf from her house, so as to raise that contention in the reply notice. 8. Certain other aspects of the matter also require to be considered in the circumstances of this case. PW1 admits that he was not having any funds with him and his contention is that what he paid to the 2nd respondent is cash obtained from his wife, that being the amount received by his wife from her family Crl. A. No. 793/2000 -10- house about one week prior to issuance of Ext.P1 cheque and advancing of loan early in January 1998. It is too much to believe that such a huge amount would be kept in the possession at the residence of PW1 and his wife for a period of one week without depositing it in the bank. However, the fact remains that other than Ext.P1, there is absolutely no evidence to show that the appellant had funds with him to be advanced to the 2nd respondent. As regards Ext.P1, PW1 is not aware as to who wrote it and who signed in Ext.P1. Thus, the execution of Ext.P1 itself does not stand established on the testimony of the PW1. The attempt of the appellant is to bank upon the presumption available under Section 139 of Negotiable Instruments Act. It has been held by the Appex Court in the decision in Krishna Janardhan Bhat v Dattatraya G.Hegde (2008 (1) KHC 410 SC) that the presumption available under Section 139 of Negotiable Instruments Act is not regarding existence of any legally enforceable debt or that there exists a debt but only that the same has been issued in discharge of any debt or other liability. That being so, it is up to the appellant to Crl. A. No. 793/2000 -11- establish that there existed a debt to be discharged by the 2nd respondent and then alone the presumption under Section 139 arises that it was in discharge of that debt that Ext.P1 was issued. There is absolutely no convincing evidence in the case as regards the existence of any debt to be discharged by the 2nd respondent. In the circumstances, I cannot, but agree with the finding of the court below that the appellant has not established a case which attracts conviction for offence under Section 138 of Negotiable Instruments Act. Consequently, therefore, the acquittal of the 2nd respondent by the court below is correct and sustainable and that requires only to be upheld. This appeal, in the circumstances, is devoid of any merit. In the result confirming the correctness of acquittal of the 2nd respondent by the court below vide judgment impugned, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE. jp