IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.Rev.Pet.No. 421 of 2001() ----------------------------- ST.3672/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR CRA.183/1999 of SESSIONS COURT, THRISSUR .................... REVN. PETITIONER: --------------------- KANNAN, S/O.ARMUGHAN CHETTIAR, MOOTHEDATHUPADI VEETTIL, MAYANNUR, KONDAZHY VILLAGE, TALAPILLY TALUK, THRISSUR DIST. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): --------------- 1. VARIJAKSHAN, S/O.THEKKOOT SREEDHARA MENON, OLLUKARA VILLAGE, THRISSUR DIST. REPD. BY HIS POWER OF ATTORNEY HOLDER, KANNANUNNY, S/O.CHANKALATHA AMMUKKUTTY AMMA, 'SREEHARI VEETTIL', SANTHI NAGAR, KANATTUKARA, THRISSUR DIST. 2. STATE OF KERALA REP.BY DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.421 of 2001 ---------------------------------------- Dated this the 24th day of June 2009 O R D E R Is there evidence of execution of the cheque? Can the train of presumptions under Section 118 and 139 of the Negotiable Instruments Act which flows from proof of due execution of the cheque be safely drawn in the facts and circumstances of this case? These questions arise for consideration in this Crl.R.P. 2. The petitioner/accused challenges the concurrent verdict of guilty, conviction and sentence imposed on him in a prosecution under Section 138 of the N.I.Act. The cheque is for an amount of Rs.25,000/-. It bears the date 29/8/1996. According to the complainant, an amount of Rs.30,000/- in two instalments of Rs.5,000/- and Rs.25,000/- was borrowed by the accused from the complainant. Towards the amount due under the cheque, Ext.P2 cheque for Rs.25,000/- was allegedly issued by the accused to the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds. Notice of demand in accordance with Section 138 of the N.I.Act was issued. It was duly received and acknowledged; but it did not Crl.R.P.No.421/01 2 evoke any response. The complainant, in these circumstances, came to court with a complaint under Section 138 of the N.I.Act after scrupulously observing the statutory time table. Cognizance was taken. The accused entered appearance. He denied the offence alleged against him. Thereupon the complainant examined a power of attorney holder of his as PW1 and the manager of the drawee bank as PW2. Exts.P1 to P7 were marked. 3. In the course of the trial, the accused took up a fairly definite stand that only an amount of Rs.5,000/- was borrowed. The same has been repaid. It is incorrect to say that a further amount of Rs.25,000/- had been borrowed. According to him, he was obliged to hand over a signed blank cheque to the complainant, a money lender as security and the complainant was fraudulently misutilising the blank signed cheque for the ulterior purpose of vexation. The accused did not adduce any defence evidence. The learned Magistrate came to the conclusion that all the ingredients of the offence under Section 138 of the N.I.Act have been established. Accordingly, the learned Magistrate proceeded to pass the verdict of guilty, conviction and sentence. 4. The conviction and sentence were challenged before the appellate court; but there was no due prosecution of the appeal before the appellate court. Both the accused/appellant and Crl.R.P.No.421/01 3 complainant/respondent were absent and the appellate court proceeded to dispose of the matter on the basis of the materials available. The verdict of guilty and conviction were confirmed; but the sentence was modified and reduced. 5. Before this court also, the complainant though served, has not chosen to enter appearance. The learned counsel for the accused has advanced detailed arguments. The learned counsel for the accused assails the impugned concurrent judgments on the following grounds: i) The courts below ought to have noted that due execution and handing over of the cheque by the accused to the complainant have not been established at all. ii) The courts below, in these circumstances, must have come to the conclusion that the presumptions under Section 118 and 139 of the N.I.Act do not enure to the benefit of the complainant. iii) At any rate, benefit of doubt must have been conceded to the accused. iv) The sentence imposed is excessive. 6. Grounds i, ii and iii: U/s 118 and 139 of the N.I.Act rebuttable presumptions of fact can be raised. But it is now trite that such presumptions cannot be raised lightly and instantly if Crl.R.P.No.421/01 4 there is a mere admission of signature of the account holder on the cheque. Proof of signature is not synonymous with proof of execution. The distance between mere admission of signature and proof of execution must be traversed by the complainant by adducing satisfactory evidence. 7. In the facts and circumstances of a given case, admission of signature on the cheque may normally go a long way to help the complainant to prove his case of execution and handing over of the cheque. But courts should not lose sight of the fact that the presumptions under Section 118 and 139 can be drawn only on proof of execution and handing over of the cheque. Such presumptions cannot be pressed into service to prove execution or to dispense with the need to prove execution of the cheque. 8. Is there evidence of proof of execution is the short point to be considered in this case. The complainant has significantly not chosen to examine himself as a witness. It is also important to note that no person conversant with the alleged transaction between the parties has also been examined as a witness. The complainant relied on the evidence of PW1 alone to prove due execution and handing over of the cheque. The learned counsel for the petitioner has taken me through the evidence of PW1 in detail. Certain circumstances appear to be vital and crucial to me while Crl.R.P.No.421/01 5 appreciating the evidence of PW1 to decide whether proof of due execution has been made available or not. Concededly PW1 had not witnessed the transaction. He had not witnessed the borrowal or the repayment by cheque. In short, he has blissfully ignorant of the transaction or the execution and handing over of the cheque. 9. The accused does not dispute the signature in the cheque leaf nor the fact that the cheque leaf was issued to him by his bank to operate the account in question. But his case is that the cheque was handed over only as security when a transaction for Rs.5,000/- was entered into. The complainant wants the court to believe that no security whatsoever is taken when such twin loans for Rs.5,000/- and Rs.25,000/- were advanced to the accused. Answers given by PW1 in the course of cross-examination knock the bottom out of the theory advanced by the complainant. To a pointed query, PW1 states that he cannot deny the suggestion that there was no consideration for the cheque as alleged by the complainant. Nay, he even goes to the extent of asserting on oath that he does not know whether the cheque was forged and fraudulently pressed into service. There is thus total absence of evidence of execution. The oral evidence of PW1 cannot at all suggest that there was a legally enforcible debt or liability or that the cheque was executed and handed over for discharge of such Crl.R.P.No.421/01 6 liability. 10. In a case where substantive evidence is available to show that the cheque duly signed was handed over by the accused to complainant, courts would certainly be justified in considering the broad probabilities of the case. The admission that the cheque leaf was issued to the accused by his bank to operate the account and the silence on receipt of the notice of demand can cumulatively support the oral evidence of the interested complainant about the execution and handing over of the cheque even in the absence of better evidence. But in a case like this where the basic substratum of the case - i.e. due execution of the cheque, is not proved at all courts will be justified in taking serious notes of such inadequacy. It will not be inapposite in this context to further note that PW1 himself admits that the entries in the cheque are in different inks. That again is, to my mind, of crucial relevance in the totality of the facts and circumstances in this case. 11. The absence of a reply to the notice of demand does disturb me. But certainly it has to be held that in the absence of any substantive evidence about due execution and handing over of the cheque, that piece of conduct on the part of the accused cannot, deliver any crucial advantage to the complainant in the proof of execution of the cheque. In the circumstance of this case, Crl.R.P.No.421/01 7 in the total absence of substantive evidence to prove execution and handing over of the cheque, the fact that the accused did not adduce any defence evidence to explain his stand does not also weight with me as crucially relevant. If substantive evidence were there, the approach of this court might have been totally different. 12. I am, in these circumstances, satisfied that the safer course to be followed by the court is to concede to the accused the benefit of doubt which is aroused in the mind of the court in in the given facts and circumstances. I unhesitatingly concede to the accused the benefit/advantage of such doubt. The challenge raised against the verdict of guilty and conviction does, in these circumstances, succeed. 13. In the result, a) This Crl.R.P. is allowed b) The impugned concurrent verdict of guilty and conviction and the modified sentence imposed by the appellate court are set aside. (R.BASANT, JUDGE) jsr Crl.R.P.No.421/01 8 R.BASANT, J Crl.R.P.No.421/01 9 Crl.R.P.No.504 of 2001 ORDER 17th DAY OF JUNE 2001