IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Crl.Rev.Pet.No. 356 of 2009() ----------------------------- CRA.505/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA ST.142/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVN. PETITIONER: ----------------------------- GIRIJA.R, AGED 42, W/O.SREEVALSAN, SREEBHAVANAM, EVOOR VADACKUM MURI, CHEPPAD. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENT(S): ------------------------ 1. RADHA MADHAVAN @ RADHAMMA, D/O.GOURIAMMA, UNNI BHAVANAM VEEDU, EVOOR VADACKUM MURI, CHEPPAD VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.THAMBAN FOR R1 SRI.R.REJI FOR R1 SRI.B.BIPIN FOR R1 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.11.2009, THE COURT ON 30/01/2010 PASSED THE FOLLOWING: P.S.GOPINATHAN, J = = = = = = = = = = = Crl.R.P.No.356 of 2009. = = = = = = = = = = = Dated this the 30th day of January, 2010. O R D E R The Judicial Magistrate of the First Class-II, Haripad, in ST.No.142/2006 on his file, convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for two months. She was also directed to pay rupees two lakhs as compensation under Sec.357(3) of the Code of Criminal Procedure to the first respondent who prosecuted the revision petitioner before the trial court, with a default sentence of simple imprisonment for three months. Though she preferred Crl.Appeal No.505/2007 before the Addl.Sessions Judge, Mavelikkara, she was unsuccessful. Assailing the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. The first respondent, in the complaint, alleged that on 8.9.2005 the revision petitioner borrowed rupees Crl.R.P.No.356 of 2009. -: 2 :- two lakhs and in discharge of that liability a cheque which was marked as Ext.P1 dated 14.1.2006 for the said amount drawn on State Bank of Travancore, Haripad branch was delivered by the revision petitioner. When presented for collection it was dishonoured for insufficient funds. Though notice demanding discharge of the liability was caused, the liability was not discharged, but a reply with false allegations was caused. 3. Heard both sides and perused the records. 4. The first respondent as Pw1 had in her chief affidavit stated that the revision petitioner borrowed Rs.2,00,000/- on 8.9.2005 and in discharge delivered a cheque dated 14.1.2006 and that Ext.P1 is the cheque and that when presented for collection, it was dishonoured for insufficient funds and that Exts.P2 and P3 are the memo and the intimation regarding the dishonour of the cheque and that Ext.P6 is the copy of the lawyer notice demanding discharge of the liability and that Exts.P4 and P5 are the postal receipt and acknowledgment card and that Ext.P7 is Crl.R.P.No.356 of 2009. -: 3 :- the reply. 5. In Ext.P7 the revision petitioner had advanced a case that by various occasions she borrowed Rs.1,35,700/- for which the revision petitioner had agreed to pay interest at a reasonable rate. But the first respondent demanded interest at the rate of Rs.13,570/- and it was paid so till April, 2005. Thereafter there was default in payment. The revision petitioner had brought a false statement of accounts and insisted to pay Rs.2,30,150/- which the revision petitioner declined. Then the first respondent created a scene at the house of the revision petitioner and the revision petitioner was persuaded to issue a cheque for rupees two lakhs. In support of the defence version Ext.D1 statement of accounts said to have been prepared by the first respondent was produced. The revision petitioner was examined as Dw2. A neighbour was examined as Dw1. Though it was alleged that Ext.D1 was prepared by the first respondent and supporting evidence was given by the revision petitioner as Dw2, she was not believed by the Crl.R.P.No.356 of 2009. -: 4 :- courts below. I find no reason to interfere with the concurrent findings of the courts below on that aspect. No head or tail can be made out of Ext.D1. So, the courts below rightly rejected Ext.D1. 6. The revision petitioner as Dw2 had given evidence corroborating with the defence advanced in Ext.P7 reply notice. Dw1, the neighbour, had deposed that the first respondent created a scene at the house of the revision petitioner and to abate the scene created by the first respondent, the revision petitioner issued Ext.P1 cheque. Dw1 was disbelieved by the courts below with a reason that he was one of the sureties of the revision petitioner. It was also alleged that the sister of the revision petitioner had been taking tuition for the children of Dw1. No doubt, such circumstances are sufficient enough to conclude that Dw1 was an interested witness, though he being an immediate neighbour of the revision petitioner and the first respondent, is a natural witness. 7. According to the learned counsel for the first Crl.R.P.No.356 of 2009. -: 5 :- respondent, the first respondent had given evidence regarding the existence of the liability and the delivery of Ext.P1 cheque. Her evidence is supported by the presumptions under Sec.118 and 139 of the Negotiable Instruments Act and that the evidence of Dws.1 and 2 even if believed, are not at all sufficient to rebut the presumptions in favour of the first respondent. The learned counsel had given reliance to the decisions reported in Beena v. Muniyappan (2001(3) KLT 950 (SC) and Johnson Scaria v. State of Kerala (2006(4) KLT 290). 8. In contra, the learned counsel for the revision petitioner canvassed my attention to the decisions in Gemini v. Chandran (2007(2) KLT 439), G.Gopan v. Tonny Varghese (2007(4) KHC 1051), Chackochan T.K. v. P.P.Paul ((2008(4) KHC 922) and Bhaskaran Nair v. Mohanan (2009(2) KLT 897) and argued that mere fact that a cheque was signed or delivered is not sufficient enough to arrive at a conclusion regarding the existence of liability or that it was delivered in discharge of the debt or Crl.R.P.No.356 of 2009. -: 6 :- liability. It is for the complaint to prove the liability and in this case there is lack of evidence to conclude regarding the means of the first respondent to part with the amount said to have been lent to the revision petitioner. Therefore, necessarily it had to be concluded that the cheque was not delivered in discharge of the liability. In Gemini’s case it was held that, ‘Court cannot, on mere proof of execution of cheque, conclude that such execution was for discharge of debt or other liability, unless there is evidence to prove such fact or there is any presumption in law to presume such fact’. In Gupta’s case it was held that, ‘burden of rebutting the presumption will be shifted to the accused only when the complainant discharges his initial burden’. In Chackochan’s case it was held that, ‘if complainant is unable to prove the transaction beyond reasonable doubt or if there are inconsistencies in the version and if the accused succeeds in rebutting the presumption, liability cannot be fastened on the accused’. In Bhaskaran Nair’s case it was held that, ‘where the materials produced disclose of Crl.R.P.No.356 of 2009. -: 7 :- suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the holder of the instrument to that effect, no conviction is legally permissible, solely banking upon the statutory presumptions. A Court is expected to examine whether the transaction covered by the cheque is genuine and bona fide’. 9. Now, the evidence of the first respondent can be examined in the light of the precedents mentioned earlier, the first respondent had averred that the revision petitioner had borrowed a sum of rupees two lakhs on 8.9.2005 and it is in discharge of that liability Ext.P1 cheque dated 14.1.2006 was issued. The very consistent argument of the revision petitioner is that the first respondent is devoid of means to pay rupees two lakhs and that there was only a liability of Rs.1,37,500/- and that too the payment was by various occasions. That being the contention, the question to be decided is, what is the actual amount due and whether the first respondent had advanced rupees two lakhs as Crl.R.P.No.356 of 2009. -: 8 :- contended by her or whether the liability is only Rs.1,37,500/-. The evidence of the revision petitioner as Dw2 is very consistent with her defence. 10. The first respondent was extensively cross- examined regarding the ability to pay rupees two lakhs. According to her, she has no independent source of income. She had been rearing two cows. Her husband is without any permanent source of income. They had only ten cents of property with a house which was obtained by inheritance. But the first respondent had stated that her son, who is married was employed in Military service for about 14 years and she had been receiving amounts between Rs.2,000/- and Rs.5,000/- every month from her son and that the amount advanced to the revision petitioner was from the amount so received to the first respondent. Though the first respondent had an account in the bank, she had not deposited the amount in bank but, had been keeping in cash, according to her, for purchase of an adjacent property. She was asked whether she was lending money Crl.R.P.No.356 of 2009. -: 9 :- for higher rate of interest. She denied the same at the first instance and asserted that she had not lent any money for interest. But, she stated in further cross-examination that she used to give small loans for one or two weeks, but not for interest. In further cross-examination she deposed that she used to lend a maximum of Rs.1,000/- and is not in the habit of obtaining any document and that she had advanced amount to the revision petitioner only once. In further cross-examination she had deposed that she had advanced Rs.2,000/- each to Usha and Vijayan but, they didn’t return the amount. That is against earlier version that she didn’t advance more than Rs.1,000/-. In further cross-examination she had deposed that there are persons who pay rupees two or three as interest for Rs.3,000/- and that certain persons used to pay rupees two or three as interest for Rs.100/- and that she had an income between Rs.10/- and Rs.600/- per month towards interest and she had also admitted that the interest was also due from the revision petitioner and that the revision petitioner had paid interest upto April, 2005 Crl.R.P.No.356 of 2009. -: 10 :- and that the revision petitioner used to pay monthly interest at different rates ie. Rs.600/-, Rs.700/-, Rs.1,000/- etc. This evidence of Pw1 would show that she was not, in fact, telling the truth. In earlier part she had deposed that she lent only once to the revision petitioner and that was on 8.9.2005. But, as I mentioned earlier, during cross- examination she had to admit that the revision petitioner had paid interest to her on various occasions at different rates till April, 2005. If that version is believed, the payment of amount on 8.9.2005 is not true. The evidence of the revision petitioner appears to be true. The first respondent was also cross-examined regarding the maintenance of account. She had deposed that she was not keeping account. That version didn’t appear to be true because her evidence would show that she had lent money to various persons at higher rate of interest and even there are defaulters. She appears to be a money lender. It appears that she had deposed that she had not been maintaining accounts only to avoid production of accounts, Crl.R.P.No.356 of 2009. -: 11 :- which may favour the revision petitioner. To justify her answer in cross-examination that the first respondent paid interest upto April, 2005, she had deposed in re- examination that on a previous occasion she had lent a sum of Rs.2,000/-. But, it is crucial to note that she had at one point of examination deposed that the revision petitioner paid interest amounting to Rs.600/-, Rs.700/-, Rs.1,000/- etc. It is too difficult to believe the version of the first respondent that such payment of interest was for sum of Rs.2,000/- advanced on an earlier occasion. She had yet another version that she had lent to the revision petitioner only once. The evidence of Pw1 being in the nature mentioned earlier, I find that she is not at all believable. 11. A perusal of the judgment of the trial court would show that instead of analyzing the evidence of the first respondent, the trial court analyzed the evidence of the revision petitioner and she was disbelieved mainly for the reason that she had been a complainant in a similar case and so she was aware of the consequences of issuing the Crl.R.P.No.356 of 2009. -: 12 :- cheques. On the same time the learned Magistrate had omitted to consider the circumstances stated by her which prompted her to deliver the cheque and that the first respondent had the burden of proof to establish the existence of liability. The appellate court had disposed the appeal without hearing the revision petitioner who was the appellant. It is stated in the judgment by the Addl.Sessions Judge that, the counsel for the appellant didn’t appear and argue the case and that the case was disposed of perusing the records and the argument advanced by the first respondent. Whatever may be the circumstance, the appellate court had also not gone into the credibility of the evidence of the first respondent. So, in effect, it could not be said that the finding of the appellate court is really a decision on merits. 12. Going by the pleadings, evidence and the precedents which I quoted earlier, I am persuaded to arrive a conclusion that though the revision petitioner issued Ext.P1 cheque, there was no liability to the extent for which Crl.R.P.No.356 of 2009. -: 13 :- Ext.P1 was drawn. The contention of the revision petitioner that the liability was only Rs.1,37,500/- appears to be true. So, it goes without saying that since the liability was only Rs.1,37,500/- and the cheque was drawn for rupees two lakhs, no offence under Sec.138 of the Negotiable Instruments Act was established. The revision petitioner is entitled to an order of acquittal. In the result, the revision petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted. The amount, if any, deposited by the revision petitioner before the trial court shall be refunded to her. P.S.GOPINATHAN, JUDGE KVS/-