IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 CRL.A.No. 1804 of 2006 -------------------------------------- CC.1151/2003 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... APPELLANT/COMPLAINANT: JOY JOSEPH, KALATHOOTHARA MALI HOUSE, VELOOR P.O., THIRUVATHUKKAL, KOTTAYAM-686 003. BY ADV. SRI.TITUS MANI RESPONDENTS/ACCUSED/STATE: 1. K.T. FATHIMA, KUNNATHU HOUSE, PULIRAMUTTY JN., KOODARANJI P.O., KOZHIKODE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1804 of 2006 --------------------------- JUDGMENT Appellant is the complainant in C.C.No.1151/03 on the file of the Judicial First Class Magistrate's Court-III, Kottayam. He assails in this appeal the correctness and sustainability of the judgment passed by the learned Magistrate, acquitting the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act, vide Section 255(1) Cr.P.C. 2. Appellant filed complaint in the court below alleging, inter alia, that the first respondent owed an amount of Rs.2,80,000/- to him in the business transactions between them; that in discharge of the said debt, the first respondent issued Exhibit P1 cheque on an account maintained by him with the drawee bank; that on forwarding the said cheque for collection through his bankers, it was dishonoured by the drawee bank under Exhibit P2 CRA 1804/06 2 memorandum dated 22.4.2003 assigning the reasons “funds insufficient” and “drawer's signature differs from the specimen signatures filed in this office”; that Exhibit P1 cheque along with Exhibit P2 dishonour memorandum was returned by his bankers to him under Exhibit P3 intimation dated 29.4.2003; that thereupon Exhibit P4 notice was issued by registered post acknowledgment due to the first respondent on 6.5.2003, intimating her of the dishonour of Exhibit P1 cheque and demanding payment of the amount covered by the cheque; that the said notice was returned unclaimed and was received by him on 24.5.2003 and that the first respondent has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and thereby she has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate recorded the sworn statement of the appellant and registered the CRA 1804/06 3 complaint on the file of his court as C.C.No. 1151/03, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. 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 learned 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 learned Magistrate. 5. On the side of the appellant, he gave evidence as PW1 and got marked in evidence Exhibits P1 to P5. On the defence side Exhibit D1 is marked through PW1. On the appellant 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 her and maintained that she is innocent. She also filed a written statement of defence, CRA 1804/06 4 wherein, her case is that during the year 2002, she was working in a company at Bombay; that while on journey to Bombay she got acquaintance with the appellant and his wife, who told her that they are having textile business at their native place; that the appellant and his wife had, on several occasions, come over to Bombay and stayed at her house; that while so, on 10.11.2002, the appellant asked for a cheque on her account at Bombay under the pretext that the amount due to be paid for the textiles purchased by them exceeded the amount which they had and for the purpose of satisfying the textile dealer, a cheque from any bank at Bombay is required and thus, she delivered over the cheque leaf bearing No.983630 from the cheque book in her account with the Thane Branch of the Syndicate Bank, even without affixing her signature and that was taken by the appellant and even without issuing a notice to her, the present complaint is filed falsely against her; that no CRA 1804/06 5 amount is due to the appellant and that she came to know of the case only when she was arrested and produced before court by the police. It is also her case that on enquiry made at her bank, it is understood that the cheque had not come over to her bank for collection and that the complaint has been filed without sending the cheque to the bank for collection, creating some false records fraudulently. 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 first respondent not guilty of the offence under Section 138 of the negotiable Instruments Act and acquitted her vide Section 255(1) Cr.P.C., in view of its finding that dishonour of the cheque did not constitute an offence, as there was difference in the signature in the cheque with the specimen signatures of the first respondent furnished with the bank and that it is not proved that Exhibit P1 cheque is issued by the first CRA 1804/06 6 respondent for the consideration shown therein or that it is duly executed by her. 7. It is vehemently contended before me by the learned counsel for the appellant that both the findings of the court below are incorrect; that the difference in the signature is attributable to the inconsistency in the manner in which the first respondent affixes her signatures; that issuance of Exhibit P1 cheque stands admitted, though it was for the purpose as stated by the first respondent in her written statement of defence and that however,existence of Exhibit D1 and the presumption available under Section 139 of the Negotiable Instruments Act should have been found to establish the case of the appellant, in the circumstances. 8. It is true that the first respondent has set up a case that an unsigned cheque leaf was being given to the appellant to satisfy the textile dealers when the amount to be paid for purchase of textiles was deficit, whereas Exhibit D1 evidences CRA 1804/06 7 that there was some obligation cast on her to be discharged and it was for that purpose that the cheque leaf was entrusted with the appellant and that the cheque leaf was to be returned only in the event of the first respondent fulfilling her obligations. There is no mention as to what the obligation cast on the first respondent is. However, in Exhibit D1, there is no mention either that the cheque is for any specified amount or that it is a signed cheque, but what is referred to is only that a cheque leaf is handed over to the appellant. The burden, therefore, is on the appellant to show that Exhibit P1 cheque in its present form had been entrusted by the first respondent with him in discharge of a debt or other liability due to him. In the complaint filed by the appellant in the court below, what has been stated is that Exhibit P1 cheque was issued in discharge of a debt due to him, as an amount of Rs.2,80,000/- was due to him from the first CRA 1804/06 8 respondent in their business transactions. What is the business transaction or whether the business transaction is evidenced by any accounts is not stated in the complaint. 9. Strangely enough, while giving evidence, the case of the appellant is that he had given Rs.2,80,000/- to the first respondent on 20.1.2003 for the purpose of procuring visa and that was the amount advanced to him by seven persons. All the same, the appellant as PW1 has admitted, as is the case of the first respondent, that their acquaintance started while travelling for the purpose of textile business. He has admitted that prior to 20.1.2003, there was no financial transaction at all between him and the first respondent and that there was no correspondence at all in writing between himself and the first respondent. PW1 has admitted that the first respondent is employed at Bombay and that himself along with his wife had gone over to her place of CRA 1804/06 9 employment several times. From the evidence tendered by the appellant as PW1, it is not evident as to how he thought of procuring visa through the first respondent and as to what is her connection with anyone abroad, so as to have visa obtained. Certainly, without making any enquiries as to how a person will be able to procure visa, no one will advance any amount for that purpose with anybody. It is also not evident as to how the appellant took it into his head that he can procure visa through the first respondent. There is also no evidence in the case to show that the appellant received amounts from seven persons for obtaining visa for them and he delivered it to the first respondent. The seven persons, who have allegedly advanced the said amount for procuring visa, are also not examined. The appellant himself is a Tailor and he has no case that he is possessed of sufficient means so as to advance Rs.2,80,000/- to the first respondent. He also does not say as to whether the CRA 1804/06 10 amount was paid in cash or by cheque to the first respondent. If at all the case of the appellant, as deposed to by him as PW1, is to be believed, one has to swallow whatever he has said without applying the mind as to its correctness. 10. The presumption available under Section 139 of the Negotiable Instruments Act, as has been held by the Apex Court in Krishna Janardhan Bhat v. Dattatraya G.Hegde (2008 (1) KHC 410), is not regarding existence of any debt or regarding existence of any legally enforceable/recoverable debt, but only that the holder of the cheque has received it in discharge of any debt or other liability. In the instant case, the appellant has miserably failed to establish that Exhibit P1 cheque is issued in discharge of the debt alleged. Further, it is also not established on evidence that what was passed on to the appellant by the first respondent is a duly executed cheque as Exhibit P1 is and not an unsigned blank cheque leaf CRA 1804/06 11 as is the case of the first respondent. 11. The further contention raised by the first respondent that Exhibit P1 cheque had not been presented at all to the bank, however, cannot be correct and the contention cannot be upheld in view of the seal of the bank and the initials of the Branch Manager of the bank found in Exhibits P1 and P2, though that is absent in Exhibit P3. However, in view of my finding that there is no proof that Exhibit P1 cheque is supported by the consideration mentioned therein and that no amount, as alleged, namely Rs.2,80,000/-, is payable by the first respondent to the appellant, concurring with the correctness of the acquittal of the first respondent by the court below, I can only dismiss this appeal. In the result, I dismiss this criminal appeal. 8th April, 2008 (K.P.Balachandran, Judge) tkv