IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRL.A.No.89 of 2008 (A) ----------------------------- ORDER IN CRL.L.P.426/2007 Dated 29/06/2007 ST.92/2006 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... APPELLANT/COMPLAINANT: --------------------------------- VIKRAMAN NAIR, AGED 46 YEARS, GOGULAM NADAKKAL, ADUTHALA P.O., AT SREE SASTHA AUTO CONSULTANT, VENGALAYA BUILDING, ANANDAVALLEESWARAM, KOLLAM-13. BY ADV. SRI.ALAN PAPALI RESPONDENT/ACCUSED AND STATE: ------------------------------------------- 1. SANTHAMMA AMMA, BUNGLAVIL VEEDU, PUTHENKULAM P.O. PARAVOOR, KOLLAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.89 of 2008 ------------------------------------------------ Dated this the 1st day of April, 2008 JUDGMENT The complainant in S.T.92/06 on the file of the Judicial First Class Magistrate's Court-III, Kollam is the appellant. He challenges in this appeal the correctness and sustainability of the acquittal of the first respondent of offence under Section 138 of the N.I. Act by the court below vide Section 255 (1) of the Cr.P.C. 2. The appellant filed the complaint in the court of the Chief Judicial Magistrate, Kollam inter alia alleging that the first respondent/accused had issued Ext.P1 cheque to him for discharging the liability of paying the amount of Rs.75,000/- on 16/12/02 at the office of the Sree Sastha Auto Consultant, Gangalaya Building, Anandavalleeswaram, Kollam; that on presentation of the said cheque it was Crl. Appeal No.89 of 2008 -2- dishonoured by the drawee bank under Ext.P2 memorandum of dishonour, assigning the reason “funds insufficient”; that the original of Ext.P4 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 cheque and that was received by the first respondent under Ext.P5 postal acknowledgment card but she has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and thus she has committed an offence punishable under Section 138 of the N.I. Act. 3. The learned Chief Judicial Magistrate before whom the complaint was filed recorded the sworn statement and registered the complaint on the file of his court as C.C.190/03 taking cognizance of the offence under Section 138 of the N.I. Act. Thereafter, Crl. Appeal No.89 of 2008 -3- the case was transferred to the court of the Judicial First Class Magistrate-III, Kollam where it was refiled assigning the present number as S.T.92/06. 4. On appearance of the first respondent in the court below pursuant to issuance of summons, she was served with copies of all relevant records in the case and she 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. 5. On the side of the appellant, he gave evidence as PW1 and got marked in evidence Exts.P1 to P5. On the appellant closing his evidence, the learned Magistrate questioned the first respondent under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against Crl. Appeal No.89 of 2008 -4- her and maintained that she is innocent. She has denied of having availed of loan of Rs.75,000/- from the appellant/complainant and of her having issued Ext.P1 cheque to him. However, she has admitted receipt of the original of Ext.P4 notice. According to her, she has not issued any cheque nor has she received any amount, but that she is aware that the appellant has got some financial transaction with her son and she is not aware as to whether any cheque belonging to her was delivered over by her son to the appellant. However, she did not adduce any evidence in defence. 6. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant not guilty of offence under Section 138 of the N.I. Act consequent on its finding that there is absolutely no evidence to prove that the Crl. Appeal No.89 of 2008 -5- appellant advanced Rs.75,000/- to the first respondent and that Ext.P1 is issued in discharge of the said debt and consequently, acquitted the first respondent of offence under Section 138 of the N.I. Act. Hence, this appeal by the aggrieved appellant. 7. It is vehemently contended before me by the learned counsel for the appellant that the first respondent when questioned under Section 313 Cr.P.C has not in so many words denied her signature in Ext.P1 cheque and that therefore, it has to be taken that the cheque is one duly written up, signed and delivered by the first respondent to the appellant especially when her son who is suspected to have passed over Ext.P1 to the appellant is not examined and that there is presumption both under Section 139 and 118(a) of the N.I. Act and under 114(c) of the Evidence Act in support of the case of the appellant and Crl. Appeal No.89 of 2008 -6- therefore, the first respondent should have been found guilty of offence punishable under Section 138 of the N.I. Act. 8. It is true that in the nature of the contention set up by the first respondent it was up to her to examine her son or to adduce such other evidence to establish that she had not delivered the cheque to the appellant. PW1 has deposed in the affidavit evidence filed by her that on 16/12/02 the first respondent came over to his Sastha Auto Consultancy at Anandavalleeswaram, Kollam and received from him Rs.75,000/- executing Ext.P1 cheque in his favour. In cross examination, it has been brought out from PW1 that the two children of the first respondent were also present while the first respondent received the said amount of Rs.75,000/- and executed and delivered Ext.P1 cheque to him. The suggestion put to PW1 that he was not having any acquaintance Crl. Appeal No.89 of 2008 -7- with the first respondent and that the cheque of the first respondent was being delivered over to him by her son has been emphatically denied also by PW1. The first respondent has not adduced any evidence to substantiate her defence. However, there is no specific denial of signature of the first respondent in Ext.P1 and it is not disputed also that Ext.P1 is drawn in an account maintained by the first respondent with the drawee bank. But all the same, the appellant who has admitted that two children of the first respondent had also witnessed the transaction has not cared to take any steps to have them examined as witnesses. There is absolutely no evidence on the side of the appellant apart from the presumptions which is contended by the appellant's counsel to be available in favour of the appellant to show that Rs.75,000/- was advanced by him to the first respondent when Crl. Appeal No.89 of 2008 -8- according to her, no amount at all was advanced to her by the appellant. The presumption available under Section 118(a) of the N.I. Act is only that every negotiable instrument is made or drawn for consideration and there is no presumption that the consideration passed under the negotiable instrument is the one made mention of therein especially when receipt of consideration and delivery of cheque to the appellant as in the instant case has been denied by the first respondent. The presumption under 114(c) of the Evidence Act is also only to the effect that the bill of exchange accepted or endorsed was accepted or endorsed for good consideration. In this context it is worthwhile to refer to the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC) wherein the Apex Court has held that the presumption under Section Crl. Appeal No.89 of 2008 -9- 139 of the N.I. Act is not regarding the existence of any debt or regarding existence of any legally recoverable debt, but that the only presumption that is available in favour of a holder of the cheque is that the same has been issued for discharge of any debt or other liability. But for the presumption under Section 139 of the N.I. Act even the presumption that a cheque was issued in discharge of debt or liability would not have been there and probably contentions would be enabled to be raised by a drawer of the cheque that he was issuing the cheque for the purpose of advancing a loan to the payee. There is no iota of evidence in the case except Ext.P1 and the interested testimony of PW1 to show that the appellant advanced Rs.75,000/- to the first respondent as alleged by him. When that is disputed by the first respondent the burden is heavy on the appellant to establish the Crl. Appeal No.89 of 2008 -10- transaction. It is not disclosed either in the affidavit evidence or in the complaint as to how the money was advanced-whether it was in cash or otherwise by means of cheque or as to from which source was so much amount raised by him to be delivered over to the first respondent on 16/12/02 namely as to whether it was withdrawn from any account maintained with any bank by the appellant or from some other source. Without establishing at least prima facie in a convincing manner that amount had been advanced by the appellant to the first respondent he cannot make out a case for conviction for an offence under Section 138 of the N.I. Act as against the first respondent. The preponderance of probabilities in the instant case certainly will not come to the rescue of the appellant in the nature of the contentions raised. It is not necessary that the first respondent should enter the witness Crl. Appeal No.89 of 2008 -11- box to swear to her case when called upon to answer an offence under Section 138 of the N.I. Act. 9. In the circumstances, concurring with the finding of the court below, I hold that the first respondent was rightly being acquitted by the court below of offence under Section 138 of the N.I. Act. This appeal is hence, devoid of merit and deserves only to be dismissed. 10. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-