IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Crl.Rev.Pet.No. 2587 of 2007() ------------------------------ CRA.698/2005 of ADDL. SESSIONS COURT, THRISSUR CC.978/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S):RESPONDENT/COMPLAINANT --------------------------------------------------------------------------- IGNATIUS, S/O.PORINCHU, KIDANGAN HOUSE, KOORKENCHERY VILLAGE DESOM, THRISSUR TALUK, THRISSUR DT. BY ADV. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL RESPONDENT/APPELLENT/ ACCUSED ---------------------------------------------------------- 1. SHAJI, S/O.KRISHNANKUTTY, PANIKKASSERY HOUSE, CHENAM DESOM, PARALAM VILLAGE, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMAPPU ADV. SRI.M.H.HANIL KUMAR FOR R1 SRI.A.P.VASAVAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2008, ALONG WITH CRRP NO. 4332 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 ================== Dated this the 17th day of November, 2008. O R D E R Revision petitioner in Crl. R.P. No. 2587 of 2007 is the complainant and revision petitioner in Crl R.P. No. 4332 of 2006 is the accused. The revision petitioner in Crl. R.P. No. 2587 of 2007, hereinafter referred to as the complainant, lodged the complaint before Judicial First Class Magistrate - I, Thrissur, contending that revision petitioner in Crl. R.P. No. 4332 of 2006 hereinafter referred to as the accused was entrusted with gold to prepare gold ornaments and he failed to account 500 gms of gold so entrusted and in the year 2000 accused along with his mother and two sisters executed the promissory note for Rs. 2,00,000/- on 8.1.2000 in favour of the complainant treating the value of 500 gms of gold to be returned by the accused calculated Rs. 400/- as per gram as the consideration and later towards repayment of the amount covered by the promissory note accused issued Ext.P1 cheque dated 8.7.2002 for Rs.1,00,000/- drawn in his account maintained in Ammadam Service Co- Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -2- Operative Bank Limited. When the complainant presented the cheque for encashment through his account in Koorkkanchery branch of Thrissur Urban Co-Ooperative Bank Ltd., Ext.P1 cheque was dishonored for want of sufficient amounts. The complainant sent Ext.P4 notice to the accused, demanding the amount covered by the dishounoured cheque. Inspite of service of intimation, accused did not receive the notice and did not pay the amount and thereby committed the offence under Section 138 of the Negotiable Instruments Act. Magistrate took cognizance of offence as C.C. No. 978 of 2002. Accused pleaded not guilty. Complainant was examined as PW1 Exts.P1 to P6 were marked on his side. Accused was not examined. The learned Magistrate on the evidence found the accused guilty. He was convicted and sentenced to simple imprisonment for one year and a compensation of Rs. 20,000/- and in default, simple imprisonment for one month. Accused challenged the conviction before Sessions Court, Thrissur in Crl. Appeal No. 698 of 2005. The learned Sessions Judge on reappreciation of evidence confirmed the conviction but reduced the substantive sentence to simple imprisonment for 15 days and confirmed the Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -3- compensation. The accused is challenging the conviction and sentence in Crl. R.P.No. 4332 of 2006. Contending that Sessions Judge while reducing the substantive sentence should have enhanced the compensation for the amount covered under Ext.P1 cheque, complainant filed Crl. R.P. 2587 of 2007. 2. The learned Counsel appearing for the revision petitioner in both the cases were heard. 3. The argument of the learned counsel appearing for the accused is that neither the trial court nor the appellate court appreciated the evidence in the proper perspective. Relying on the decision of the apex court in Krishna Janardhan Bhat v. Dattatraya G. Hedge [(2008)2 SCC (Cri)166], Narendra Singh and another v. State of Madhya Pradesh [2004 (10) SCC 699], Kamala v. Vidhyadharan [2007 (3) KLT 861 (SC)], it was argued that burden is on the complainant to prove the ingredients of an offence under Section 138 of the Negotiable Instruments Act and the burden on the complainant is to prove the offence beyond all reasonable doubt and burden of the accused is only to rebut the presumption provided under Section 139 of Negotiable Instruments Act and it could be Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -4- rebutted by preponderance on probability and this cardinal principle was omitted to be taken note of by the courts below. The learned counsel argued that though it was the case of the complainant that gold was entrusted to the accused for making ornaments on various occasions and he did not account for 500 grams and therefore there was a settlement of accounts where under the gold to be returned by the accused was fixed at 500 gms and assessing the value per gram at Rs.400/-, liability was fixed at Rs.2,00,000/-, there is absolutely no evidence to prove either that gold was entrusted or that the accused failed to account 500 gms of gold or that the account was settled in 2000 as claimed by the complainant. It was argued that in the absence of evidence to prove that there was a legally recoverable debt, complainant is not entitled to succeed in the case at all. The learned counsel also argued that evidence of PW1, is contrary to the pleadings and the presumption provided under Section 139 of Negotiable Instruments Act could be drawn only on establishing execution of Ext.P1 cheque and as against the allegation in Ext.P4 notice that the accused wrote and signed and handed over the cheque to the complainant, which was Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -5- reiterated in the complaint, at the time of cross examination, evidence of PW1 was that he cannot say who had written Ext.P1 cheque and when accused disputed execution of the cheque, the presumption provided under Section 139 cannot be drawn an execution was not proved. The learned counsel argued that in the light of this evidence of PW1 conviction is not sustainable. 4. The learned counsel appearing for the complainant argued that inspite of the specific case in the complaint as well as in chief examination of PW1, he was not cross examined with regard to the execution of the promissory note. The learned counsel argued that though a copy of the promissory note was produced before the learned Magistrate, as execution of the promissory note was not challenged, it was not marked according to PW1 when under the promissory note consideration was Rs.2,00,000/-, Ext.P1 cheque is for Rs.1,00,000/-. It was argued that courts below rightly accepted the case of the complainant and rejected the case of the accused. The learned counsel also pointed out that when the case suggested to PW1 was that on the previous day to the marriage of the accused, complainant along with others came to his house and forcibly Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -6- obtained the cheque as well as the signed papers from the accused, his mother and sisters, evidence of DW1 shows that the alleged incident was not on the previous day of the marriage but two or three days prior and the fact that the accused, his mother and sisters did not lodge any complaint before the police and did not even intimate the bank not to honour Ext.P1 cheque falsifies the defence and case of the accused was rightly rejected by the courts below. The learned counsel also argued that evidence of DW1 does not inspire any confidence and learned Magistrate and the Learned Sessions Judge appreciated the evidence in the proper perspective and accepted the evidence of PW1 and rejected the evidence on DW1 and it is not for this court to interfere with the appreciation of the evidence and therefore the revision filed by the accused is only to be dismissed. The learned counsel also argued that even though the complainant did not prefer a revision against the judgment of the learned Magistrate limiting the compensation of Rs.20,000/-, when learned Sessions Judge reduced the substantive sentence, compensation should have been enhanced to the amount covered by the dishonoured cheque and the sentence is to be modified. Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -7- 5. The arguments of the learned Counsel appearing for the accused, based on the decisions of the apex court referred to earlier is that there is no evidence to prove that accused agreed to pay Rs. 2,00,000/- as claimed by the complainant or Rs.1,00,000/- shown in the dishonoured cheque was towards part payment. It was argued that though a copy of the promissory note was produced, it was not tendered in evidence and therefore no reliance can be placed on the copy of promissory note and there is no evidence to prove that complainant had entrusted gold for making ornaments to the accused or that the accused failed to account for 500 gms of gold. There is force in the submission of the learned counsel. Though PW1 asserted that in the year 2000, the quantity of gold to be returned by the accused was fixed at 500 gms and the gold was earlier entrusted to the accused without getting any receipt or acknowledgment, it is not disclosed on what basis 500 gms of gold was fixed, as the quantity of gold to be accounted by the accused. Though reliance was placed by the learned counsel on the recitals in the promissory note to the effect that 500 gms entrusted to the accused was made use of by the accused, his mother and sisters, Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -8- when the original promissory note was not produced and the photocopy was not even tendered in evidence, it is not possible to rely on the recitals in the promissory note to find whether Ext.P1 cheque was issued in discharge of the liability which was outstanding in the year 2000. A reading of the compliant shows that the cheque was not for repayment of the value of the gold to be returned by the accused and instead was issued towards repayment of Rs.2,00,000/- covered by the promissory note. In such circumstances, question whether the promissory note was executed, and if it was executed whether it was supported by consideration are all relevant facts which should have been proved by the complainant. Even though the copy of the promissory note shows that the promissory note was written by one Ramanan, even the said Ramanan was not examined. Though the promissory note was seen executed by four persons including the accused, there is only one stamp seen affixed and only the signature of petitioner is seen on the stamp. Ext.P4 notice shows that complainant had sent that notice not only to the accused but also to the other executants of the promissory note including the mother and sisters of the accused, claiming Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -9- the amount covered by the promissory note from them. The promissory note is dated 8.1.2000. Ext.P1 cheque is dated 8.7.2002. Ext.P4 notice was sent on 24.8.2002. Inspite of the demand for Rs.2,00,000/- in Ext.P4 notice, complainant did not institute any suit for realisation of the amount covered by the promissory note allegedly executed by the accused along with his mother and sisters. It is not the conduct expected from a person of the nature of the complainant. If in fact the accused had not accounted 500 gms of gold and the liability was fixed at Rs. 2,00,000/- and a promissory note was executed and later a cheque towards part payment of the amount being Rs.1,00,000 was issued and it was dishonoured and inspite of the notice the amount was not paid, it would have been reduced to writing. When PW1 was examined in reexamination it was clarified that no suit was instituted for realisation of the money under the promissory note as mother of the accused had promised to settle the dispute. It is to be borne in mind that PW1 was examined after the expiry of the period of limitation for institution of the suit for realisation of the amount due under the promissory note, suit for the mount would have been instituted. Evidence of PW1 Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -10- in the background of the facts do not inspire confidence. As rightly argued by the learned counsel appearing for the accused, it is the specific case of the complainant in Ext.P4 notice that the accused had written and executed and issued the cheque in his favour which was later dishonoured. It is the very same case set up in the complaint also. But when PW1 was cross examined and he was asked who had written Ext.P1, the answer was that he cannot say as to who had written the cheque. If in fact the cheque was written and signed and issued to the complainant, as stated in the notice, the complainant PW1 would not have hesitated to answer the question and would have in unambiguous terms would have stated that it is the accused who had written Ext.P1 in his presence and handed it over to him. The evidence of PW1 casts sufficient doubt on the genuineness of the case set up by him. Even if there discrepancy in the version of the accused, and when PW1 was examined, it was suggested that the cheque and the blank paper were got signed and obtained by the complainant on the previous day of his marriage and when the accused was examined as DW1 his version was that it was two or three days prior to the marriage on that basis Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -11- evidence of PW1 cannot be accepted. As rightly, argued by learned counsel, weekness of the defence case will not enable the complainant to accept his case or to get a verdict of guilt against the accused without establishing the ingredients of the offence. When the entire evidence adduced by the complainant is insufficient to prove that accused was entrused with gold and he failed to account the gold and the account was taken in 2000 and the liability was fixed as 500 gms of gold to be returned and it was valued at Rs. 2,00,000/- and later Ext.P1 cheque was issued towards payment of the amount, it cannot be said that the cheque was issued for discharge of the existing legally recoverable debt. Learned Magistrate and learned Sessions Judge unfortunately did not appreciate the evidence in the proper perspective and was carried away by the presumption provided under Section 139, which could have been drawn only on establishing its execution. When the very execution of the cheque was not proved by the evidence of PW1, such presumption could not have been drawn. When it is alleged that Ext.P1 cheque was issued towards repayment of the amount due under a promissory note, without proving execution of the Crl.R.P.No. 2587 of 2007 and Crl. R.P. No. 4332 of 2006 -12- promissory note and the consideration for that promissory note, it is not possible to uphold the case of the complainant that Ext.P1 cheque was issued towards payment of the amount covered by the promissory note. The case could have been upheld only on establishing that the amount covered by the promissory note was a legally recoverable debt. When the entire evidence is appreciated in the proper perspective cheque, it can only be held that the complainant did not establish that Ext.P1 cheque was issued towards payment of the legally recoverable debt due from the accused. Hence, the conviction and the sentence is not sustainable. Crl. R.P. No. 4332 of 2006 is allowed and Crl.R.P.No. 2587 of 2007 is dismissed. The conviction and sentence in C.C. 978 of 2002 as confirmed and modified in Crl. Appeal No. 698 of 2005 are set aside. The accused is found not guilty. He is acquitted. M.SASIDHARAN NAMBIAR JUDGE rhs/-