IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 CRL.A.No.1589 of 2004 ( ) ------------------------------- AGAINST THE ORDER IN CRL.L.P.602/2004 Dated 28/09/2004 ST.599/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, OTTAPPALAM. .................... APPELLANT: COMPLAINANT -------------------------------- VELAPPAN, S/O. POTHUVAYIL KRISHNAN KUTTY RESIDING AT “MANOJ NIVAS”, PATHAMKKULAM, KOTHAKKURISSI POST, OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. VILASINI W/O. IKYTHIL JANARDHANAN, PANAMANNA AMSOM AND DESOM, AMBALAVATTOM POST, OTTAPPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1589 of 2004 ------------------------------------------------ Dated this the 13th day of March, 2008 JUDGMENT This appeal with leave is filed by the complainant in S.T.599/2000 on the file of the Judicial First Class Magistrate's Court, Ottapalam assailing the acquittal of the first respondent under Section 255(1) of the Cr.P.C of offence punishable under Section 138 of the N.I. Act. 2. The appellant filed complaint in the court below against the first respondent alleging that himself and the first respondent are known to each other and are relatives; that to meet the expenses in connection with the marriage of the daughter of the first respondent, she borrowed an amount of Rs.75,000/- from him and in discharge of the said debt the first respondent issued Ext.P1 cheque to him drawn on her account at the Crl. Appeal No.1589 of 2004 -2- Ananganadi branch of the State Bank of Travancore dt.20/06/99 for Rs.75,000/-; that on forwarding the cheque for collection by the appellant through his bankers namely the Kothakurussi Service Co-operative Bank it was returned dishonoured under Ext.P2 memorandum assigning the reason “payment stopped by the drawer” when actually there was no sufficient funds in her account to honour the said cheque and the said cheque along with Ext.P2 memorandum was forwarded to the appellant by his bankers along with Ext.P3 memorandum; that thereupon, the original of Ext.P4(a) notice was issued to the first respondent through lawyer intimating her of the dishonour of the cheque and demanding payment of the amount covered by the said cheque under Ext.P4(b) postal registration receipt and the first respondent has thereupon issued Ext.P5 reply through lawyer setting up false contentions Crl. Appeal No.1589 of 2004 -3- and has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter; and that the first respondent has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the first respondent in the court below pursuant to issuance of summons he was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted by the court below. On the side of the appellant, he gave evidence as PW1 and got marked Exts.P1 to P9. On the complainant closing his evidence the first respondent was questioned under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against him and maintained that she is innocent. She filed a written statement of Crl. Appeal No.1589 of 2004 -4- defence as well wherein her contentions are that there was absolutely no financial transaction with the appellant and no cheque had been issued to him; that her husband Janardhanan along with his relative one Mohanan was conducting a Kuri transaction and the said Mohanan has received amounts from the appellant and several others and those amounts were misappropriated by the said Mohanan and when her husband questioned the said Mohanan about this, Mohanan developed animosity towards her husband and later Mohanan committed suicide and the appellant was demanding for payment of the amounts received by Mohanan from her husband which he could not agree and the appellant and his gang consequently trespassed into her house and committed huge damage and in connection therewith C.C.517/99 is registered against the appellant and his son; that O.S.279/99 is Crl. Appeal No.1589 of 2004 -5- filed by her husband for realisation of damages caused to her house by the appellant and his gang; that in the course of trespass and attack made on her house a blank signed cheque leaf kept by her had been stolen away by the appellant and his gang; and that on the very next day of trespass having been committed by the appellant and his gang into her house and stealing the cheque leaf she had given intimation to the bank regarding the loss of the said cheque leaf and that on account of animosity in her husband filing O.S.279/99 aforesaid, the appellant and his gang have colluded together and has brought into existence Ext.P1 cheque on the stolen blank signed cheque leaf kept by her at her house to be entrusted with the R.D. agent the next day as she was proceeding on pilgrimage to Vallikkavu on the next day and as amounts paid by customers into her account by cheque Crl. Appeal No.1589 of 2004 -6- will have to be withdrawn. 4. On the defence side DWs.1 and 2 were examined and Exts.D1 and D7 series were got marked in evidence. 5. The court below considered the case in the light of the evidence so adduced; found that the case of the appellant that he advanced amount of Rs.75,000/- to the first respondent by way of loan and Ext.P1 cheque was being issued in discharge of the said debt is not convincing and consequently, acquitted the first respondent of the offence under Section 138 of the N.I. Act vide Section 255 (1) of the Cr.P.C. 6. It is vehemently contended before me by the learned counsel for the appellant that the court below has miserably gone into error in not appreciating the case of the appellant in the proper perspective; that the respondent has miserably failed to establish that the Crl. Appeal No.1589 of 2004 -7- cheque leaf used for Ext.P1 cheque was stolen from her house by the appellant and his gang trespassing into her house; and that therefore, Ext.P1 being a cheque drawn on an account maintained by the first respondent in her account and that was being dishonored when there was no sufficient funds in her account to honour the said cheque though the reason assigned for dishonour of the cheque was that the payment is stopped by her; and all statutory formalities which are pre-requisites for the maintainability of a complaint under Section 138 of the N.I. Act are also complied with, the first respondent should have been found guilty and convicted of offence under Section 138 of the N.I. Act. 7. The learned counsel for the first respondent submitted that she has no contention that statutory formalities which are pre-requisites for the maintainability of Crl. Appeal No.1589 of 2004 -8- a complaint under Section 138 of the N.I. Act do not stand complied with in the instant case. It is also submitted by her that it is true that there was no sufficient funds in the account of the first respondent to honour Ext.P1 cheque though according to her, the reason for dishonour of the cheque was stop payment direction issued by the first respondent. 8. The only question to be considered therefore, is as to whether Ext.P1 cheque is one issued by the first respondent for the discharge of debt due to the appellant. It is the case of the appellant that Rs.75,000/- was availed of as loan by the first respondent from him for the purpose of the marriage of the daughter of the first respondent and that the loan was being so availed of on 24/01/99. There is absolutely no evidence in the case as regards the date, month or year in which Crl. Appeal No.1589 of 2004 -9- marriage of the daughter of the first respondent has taken place. There is also no evidence to show that the first respondent is having a daughter and no evidence is adduced by the appellant to establish those aspects though the case set up is that amount was advanced for the purpose of the marriage of the daughter of the first respondent. Further, there is absolutely no evidence as to the source of the funds for the appellant to advance Rs.75,000/- to the first respondent as alleged apart from production of Ext.P1 cheque. 9. Counsel for the appellant urges that no evidence need be adduced on those aspects as presumption is there under Section 139 of the N.I. Act in favour of the holder of the cheque that the cheque has been issued in discharge of debt. The contention is not tenable for two reasons. Firstly, that the Crl. Appeal No.1589 of 2004 -10- Apex Court has held that under Section 139 of the N.I. Act there is no presumption regarding existence of a debt or existence of a legally recoverable debt under Section 139 of the N.I. Act, but the presumption available under Section 139 of the N.I Act in favour of the holder of the cheque is only that the same has been issued for discharge of any debt or other liability. Secondly, it is not the case of the first respondent that the cheque is issued by her to the appellant. Hence, the burden is very heavy on the appellant to establish that Ext.P1 cheque has been issued by the first respondent to him in discharge of a legally enforceable debt on the facts of this case. 10. In this context, it is worthy to note that the appellant has no consistent case as regards issuance of cheque by the first respondent. PW1 has stated in the earlier part of the cross examination that the cheque was Crl. Appeal No.1589 of 2004 -11- issued to him by the first respondent on 20/06/99. He further stated that Ext.P1 cheque was issued by the first respondent when she borrowed Rs.75,000/-. Again PW1 stated that the cheque when issued to him had been duly filled up and that he had not written anything in the said cheque. However, when the relevant portion of Ext.D1 deposition was confronted to him, he answered that he does not remember whether he had deposed before the Munsiff's Court that the entries in Ext.P1 cheque were made by him. However, he admitted that when he was examined in O.S.294/99 he had stated that the first respondent issued Ext.P1 cheque immediately on advancing of the loan. This is contrary to what he has stated before court in cross examination that at the time of giving the amount the accused has not given the cheque to him. But later, probably realising the inconsistency, he deposed further that the Crl. Appeal No.1589 of 2004 -12- cheque was given to him immediately on borrowing the amount, but it was returned to the first respondent and subsequently, the first respondent gave the same cheque to him after filling up the date as 20/06/99. Even the limited presumption under Section 139 of the N.I. Act in favour of the holder of the cheque will be available only in the event of the due execution of the cheque being proved. Considering the inconsistent version given by PW1 as regards the execution of Ext.P1 cheque his evidence regarding the execution of Ext.P1 cheque is not believable as has been found by the court below. The appellant as PW1 towards the close of the cross examination has also deposed that he does not remember as to whether he has deposed before the Munsiff's Court that Ext.P1 cheque was not written by the first respondent but the signature in Ext.P1 is of the first respondent and that the Crl. Appeal No.1589 of 2004 -13- other particulars in Ext.P1 was being written by him. 11. Thus, on an appreciation of the entire evidence in the case, I am unable to come to the conclusion that Ext.P1 cheque is issued by the first respondent to the appellant in discharge of any legally enforceable debt or that Ext.P1 is duly executed by the first respondent in favour of the appellant. Consequently, therefore, the acquittal of the first respondent by the court below deserves only to be confirmed and this appeal dismissed. 12. In the result, confirming the correctness of the acquittal of the first respondent by the court below, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-