IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 CRL.A.No. 1201 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.264/2004 Dated 24/05/2004 CC.95/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT/COMPLAINANT ------------------------- RAHPEL ANTONY, ARIPPALAM HOUSE, CHEERACHI, OLLUR P.O., THRISSUR. BY ADV. SRI.JIJO PAUL RESPONDENTS/ACCUSED & STATE ------------------------------ 1. BIJU RAPHEL S/O. KOROTH RAPHEL, HOUSE NO.VIII/88, CHITTADI PO., VANDAZHI, PALAKKAD. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. ADV. SRI.P.K.SAJEEV FOR R1 PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C.HARI RANI,J. * * * * * * * * * * * * * Crl.A.No.1201 of 2004 ---------------------------------------- Dated this the 23rd day of February 2011 J U D G M E N T The appellant is the complainant in C.C.No.95/2001 on the file of the Judicial First Class Magistrate Court I, Thrissur filed under Section 138 of the Negotiable Instruments Act. As per judgment dated 27/08/2003, the accused was acquitted under Section 255(1) Cr.P.C which is challenged by the appellant/complainant in this appeal. 2. The case of the complainant is briefly as follows: The accused had drawn and delivered a cheque dated 18/7/2000 for Rs.2,75,000/- in the account maintained by the accused at Canara Bank, Cherpu branch, Thrissur to the complainant for discharging a legally enforcible debt due to him. The complainant presented the cheque for encashment and the same was returned on 22/7/2000 for the reason of funds insufficient in the account of the accused. Thereafter, a lawyer notice dated 02/08/2000 was issued by the complainant to the accused to make payment of the amount covered by the cheque within Crl.Appeal No.1201/04 2 fifteen days of the receipt of notice for which a reply notice dated 19/08/2000 was sent by the accused to the complainant with false contentions. As the amount was not paid pursuant to the notice, the complainant filed the complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act. 3. On the side of the complainant, the appellant/PW1 was examined and Exts.P1 to P6 were marked. The accused examined under Section 313 Cr.P.C. The accused himself was examined as DW1 and no documentary evidence was adduced on the side of the defence. After considering the evidence on record, the learned Magistrate acquitted the accused under Section 255(1) Cr.P.C which is challenged in this appeal. 4. Heard the learned counsel for the complainant/appellant and the learned counsel for the 1st respondent. Heard the learned Public Prosecutor also. 5. The learned counsel for the appellant submitted that since the accused had admitted the execution of Ext.P1 cheque the presumption under Sections 118 and 139 of the Negotiable Instruments Act would apply and the evidence adduced from the side of the accused is not sufficient to rebut that presumption. Crl.Appeal No.1201/04 3 According to the learned counsel, the complainant had established his case beyond doubt and the order of acquittal of the accused is illegal and unsustainable. The learned counsel for the 1st respondent supported the judgment of acquittal. 6. The case of the complainant/appellant in the complaint was that the accused had drawn and delivered a cheque dated 18/7/2000 for Rs.2,75,000/- to him for discharging a legally enforcible debt due to him. Thus, according to the complainant, the cheque was drawn by the accused in the account maintained by him at the Canara Bank, Cherpu branch, Thrissur in discharge of a debt due to him. On which date the disputed cheque Ext.P1 was handed over by the accused to the complainant and from where it was handed over etc. were not stated either in the complaint or in the lawyer notice (copy of which was marked as Ext.P3). In the reply notice, Ext.P6 as well as in the cross-examination of PW1 and also in the evidence tendered by the accused as DW1 and in the 313 statement, the definite case of the accused was that he had handed over a blank signed cheque to the complainant; but the purpose for which it was handed over was disputed. The accused thus did not dispute the genuineness of his signature in Ext.P1 cheque and the fact Crl.Appeal No.1201/04 4 that the same was handed over by the accused to the complainant. The circumstances under which it came in the hands of the complainant are also disputed. According to the accused, there was an earlier transaction between the complainant and his father in the year 1998. In February 1998 Rs.50,000/- was availed by his father from the complainant for which sale deed No.405/1998 was registered in the name of the complainant for name sake in respect of property of 20 ¾ cents belonged to his father and mother as security for that loan amount. Along with that, the signed blank cheque of the accused was also handed over as security by the accused. Subsequently, that loan amount was repaid along with interest and the property was re-conveyed by the complainant whereby ten cents of property was re-conveyed in the name of his father and 10 ¾ cents of property was re-conveyed in the name of the accused by document Nos.3021/1998, 3463/1998 respectively. But the blank cheque when demanded by the accused, it was not given back by the complainant demanding 10% interest for that loan amount. That signed blank cheque in the hands of the complainant was misused and after material alterations in the amount, debt, name etc. the same was presented before the Crl.Appeal No.1201/04 5 bank. Thus the definite case of the accused was that the cheque given to the complainant for another transaction was misused by the complainant and not in discharge of a legally enforcible debt and as such no offence under Section 138 of the Negotiable Instruments Act has been committed by the accused. 7. It is the admitted case that the complainant and the accused knew each other earlier and there were earlier transactions between them. The defence case was that the cheque was given by the accused in the earlier transaction; but the same has not been given back by the complainant even after discharge of that loan amount. Thus the burden is on the accused to prove that the disputed cheque was not given by him to the complainant in discharge of any liability. Once signature is admitted, it is for the accused to establish with convincing evidence that he did not execute the cheque to discharge any legally enforcible debt due to the complainant. The accused has relied on the evidence of the complainant as PW1 and his own evidence as DW1 to conclude that Ext.P1 was not issued for consideration and the complainant received the same not in discharge of a debt as alleged in the complaint. It is the settled law that even if a blank signed cheque is given and it is filled in Crl.Appeal No.1201/04 6 the hand writing of another person other than the drawer of the cheque, even then the presumption under Section 139 of the Negotiable Instruments Act will be attracted and it is for the accused to rebut the presumption by adducing cogent evidence. 8. The learned counsel for the respondent has pointed out some discrepancy in the complaint and also in the evidence tendered by the complainant as PW1. He has also relied on certain admissions of the complainant in the cross-examination made by the learned counsel for the accused. In the cross- examination, it was admitted by PW1 that only Rs.50,000/- was availed as loan by the father of the accused and at that time documents were executed in his favour in the year 1998 in respect of 20 cents of property. That property was assigned in his favour as security for that loan transaction. After repayment of that loan amount, that property was re-conveyed in the names of the father of the accused in respect of ten cents of property and another document in respect of 10 ¾ cents of property in the name of the accused. That transaction was entered into between the complainant and the father of the accused in the presence of the accused also on receipt of valid security. But the loan of Rs.2,75,000/- was given by him in March 2000 and as security Crl.Appeal No.1201/04 7 towards the same, the disputed cheque was handed over then and there. That has been re-asserted in the re-examination also that cheque was issued by the accused to him while loan was availed by the accused then and there. He has got a different case also. That is the cheque was given by the accused in March 2000 from his house and the disputed cheque dated 18/7/2000 was given to him subsequently when the amount was demanded. All these aspects were considered by the learned Magistrate and found that the complainant has failed to establish that Ext.P1 cheque was issued in discharge of a debt and legally enforcible liability. Accordingly, accused was found not guilty and acquitted under Section 255(1) Cr.P.C. I find no reason to interfere with that finding entered into by the learned Magistrate and the same is confirmed. 9. In the result, this appeal is dismissed. (M.C.HARI RANI, JUDGE) jsr Crl.Appeal No.1201/04 8 Crl.Appeal No.1201/04 9 M.C.HARI RANI, J. .No. of 200 ORDER/JUDGMENT 29/07/2009