IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRL.A.No. 1794 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.468/2003 Dated 15/10/2003 CC.1256/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- K.P.ANTO, AGED 42 YEARS, S/O.PAULOSE, KYTHARATH MANAPPURAM HOUSE, KIZHEKKE CHALAKKUDY VILLAGE, VETTUKADAVU ROAD, MUKUNDAPURAM TALUK. BY ADVS. SRI.B.JAYASANKAR, SRI.P.K.SAJEEV. RESPONDENT(S): ACCUSED AND STATE OF KERALA: -------------------------------------------------------------------------------- 1. JOHNI @ JOHN, AGED 55 YEARS, S/O.MATHAI, AMBOOKEN HOUSE, POYYA VILLAGE, KODUNGALLOOR TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. SRI.P.VIJAYA BHANU, SRI.TONY MATHEW. R2 BY PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2011, THE COURT ON 4/08/2011 DELIVERED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.1794 of 2003 ---------------------------------------------------- Dated this the 4th day of August, 2011 Judgment This appeal is filed by the complainant challenging the verdict of acquittal passed in a case filed by him alleging offence under Section 138 of the Negotiable Instruments Act. Brief facts necessary for the case are stated below: 2. According to the complainant, the accused/respondent borrowed an amount of Rs.1,80,000/- and to discharge that debt Ext.P1 cheque was issued which on presentment was bounced due to insufficiency of funds. Notice as provided under the proviso (b) to Section 138 of the Negotiable Instruments Act was sent. Amount covered by the cheque was not paid. Hence the complaint was filed. 3. The evidence on the side of the complainant consists of the oral testimonies of the complainant as PW1 and Exts.P1 to P7. The accused got himself examined as DW1 and Exts.D1 to D4 were marked. 4. The court below found that there were transactions between PW1 and DW1. It was contended by the accused that in 1999 he had borrowed Rs.1,50,000/- from PW1. At that time Crl.A.1794/03 2 signed blank cheque leaves were given by him to the complainant. The amount of Rs.1,50,000/- with interest was repaid by him. It was admitted by PW1 that he had received Rs.1,50,000/- from the complainant. The fact that date of lending was not mentioned in the complaint was relied upon by the learned Magistrate as a circumstance to hold that the transaction averred by the complainant is not true. After analysing the evidence the learned Magistrate found that the complainant could not prove that Ext.P1 was issued in discharge of any debt or liability and thus the accused was acquitted. 5. The appellant contends that the learned Magistrate failed to appreciate the evidence properly. It was contended that the learned Magistrate should not have relied upon Exts.D1 to D4 to hold that the case of the complainant is untrue. The court below should have found that the accused failed to rebut the presumption, the appellant contends. 6. Learned counsel for the appellant and respondent/accused have been heard. The point for consideration is whether the finding entered by the learned Magistrate that the accused failed to prove that Ext.P1 was issued by the accused in Crl.A.1794/03 3 discharge of any legally enforceable debt or liability is unsustainable. Ext.P1 is the cheque which admittedly bears the signature of the accused. But the learned counsel for the accused would submit that this signed cheque leaf was the one of the cheque leaves handed over by the accused to the complainant in the year 1999, when he had borrowed Rs.1,50,000/- from him. It is further argued that there is no evidence to show that Ext.P1 was filled up by the accused. No doubt, the complainant can fill up the cheque but there must be cogent and convincing evidence to show that it was filled up by the complainant or any other person as instructed by the accused. 7. The learned counsel for the accused would submit that the figure '19' seen printed on the top of Ext.P1 would indicate that this cheque leaf was issued and was intended to be used in the year 1999 or prior to that; or, if at all it could be used only during the early months of the year 2000. That has relevance here in view of the fact that the specific plea raised by the accused is that he had borrowed Rs.1,50,000/- from the complainant in 1999 and at that time a signed blank cheque leaf Crl.A.1794/03 4 was given to the complainant and it was making use of that cheque leaf this case was foisted against him. The difference in the ink and its age as could be seen from the writings in Ext.P1 also has been pointed out by the learned counsel for the accused to fortify his submission that this cheque could not have been issued on 29.6.2001. Added to this is the non-mention in the complaint as to the date when the complainant was stated to have lent money to D.W.1. Except the ipse dixit of P.W.1, there is no evidence to show when exactly the amount was lent by him to the accused. From the mere fact that the signature of the accused is seen on Ext.P1 cheque, no presumption can be had that there was due execution of the cheque or that it was executed/issued in discharge of a legally enforceable debt or liability. 8. Since the oral testimony given by P.W.1 has been countered by the accused by offering himself as a witness, it would turn out to be a case where as against the oath given by P.W.1, there is the oath given by D.W.1. Of course, if the preponderance of probabilities would favour the case advanced by the complainant that in all probability the execution of Ext.P1 Crl.A.1794/03 5 cheque stood proved, then he can bank upon the presumption under Section 139 of the N.I.Act. Therefore, the crucial question is whether P.W.1 could prove that there was due execution of Ext.P1. It is in this connection the unreliability of the evidence given by P.W.1 that has been projected by the learned counsel for the accused. It is contended by the defence that even in Ext.D4 reply notice sent to the statutory notice it was specifically stated by him that he had borrowed only Rs.1,50,000/- on 21.1.1999 and at that time four signed blank cheque leaves were obtained by the complainant. It was also the specific case in Ext.D4 that the entire amount of Rs.1,50,000/- so borrowed by him was repaid. Though dispute was raised with regard to certain payments stated to have been made by the accused to the complainant towards the interest in March, 1999, May, 1999, July, 1999, September, 1999, March, 2000 etc. which according to the accused was the interest payable on the principal sum of Rs.1,50,000/-, the accused had to admit that Rs.1,50,000/- was repaid by the accused through the account of the appellant maintained at Indian Bank, Chalakudy on 2.1.2001. The stand originally taken by the complainant was that there was no such Crl.A.1794/03 6 transaction or payment of money as alleged by the accused. But only when he was cornered with the difficulty, he had to admit the payment of Rs.1,50,000/- through his account. If that be the position, how can implicit reliance be placed on the evidence given by P.W.1 is the pertinent question posed by the learned counsel for the accused. When the acceptability or otherwise of the case projected by the complainant has to turn back on the reliability of the evidence given by P.W.1 and when it is found that P.W.1 is not wholly reliable, it is difficult to hold that the evidence given by P.W.1 should infuse confidence in the mind of the court. In otherwords, the court cannot rely upon the prevarications of P.W.1 to find that Ext.P1 was issued by the accused in discharge of a legally enforceable debt or liability, the learned counsel for the respondent/accused submits. It is submitted by the learned counsel for the complainant that though it was contended by the accused that in January, 1999 when he had availed a loan from the complainant, he had handed over four signed cheque leaves and also the vehicle documents pertaining to two vehicles belonging to the accused, even after 2.1.2001 the accused did not send any notice to the complainant Crl.A.1794/03 7 nor did he file any complaint to the police or before any other authority complaining of non-return of the alleged blank cheque leaves and the documents relating to the two vehicles. This, according to the learned counsel for the complainant is a conduct which would assume relevance and would run counter to the case advanced by the accused. No doubt, no plausible explanation was given by the accused regarding the same. Of course, the learned counsel for the accused would submit that the accused was under a bonafide belief that the cheque leaves and other papers would be soon returned. The accused who was examined as D.W.1 has stated that towards the loan transaction of the year 1999 including Rs.1,50,000/-, he had paid a total amount of Rs.2,44,000/- and thereafter he had requested for return of the documents. He has further sworn that on 18.6.2001 when he demanded return of the documents mentioned earlier, there ensued an altercation. The learned counsel for the appellant would submit that it was because of that altercation a date was put as 20.6.2001 in Ext.P1 cheque and presented the same on the very same day and obtained the dishonoured memo also on the same date. That circumstance also, according to the defence Crl.A.1794/03 8 would unravel the fallacy of the case advanced by the claimant. 9. It is also important to note that the learned Magistrate who had the added advantage of watching the demeanour of the witnesses has critically analysed the evidence given by P.W.1. The non-mention of the date of lending was also taken as one of the circumstances to doubt the case of the complainant. The other circumstances delineated earlier also persuaded the learned Magistrate to doubt the case advanced by the complainant. Since the view taken by the learned Magistrate is found to be reasonable, the court sitting in appeal should not normally venture to upset that finding founded on legal evidence. In view of what is stated above, I find no reason to hold that Ext.P1 cheque was issued by the appellant in discharge of a legally enforceable debt or liability and as such the verdict of acquittal given by the court below is only to be confirmed. 10. In the result, this Criminal Appeal fails and it is dismissed. N.K.BALAKRISHNAN, JUDGE. mns/srd Crl.A.1794/03 9 Crl.A.1794/03 10