IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 CRL.A.No. 212 of 2003() ----------------------- C.C.No.145/1998 of Addl. Chief Judicial Magistrate(Economic Offence), Ernakulam APPELLANT(S): COMPLAINANT: -------------------------- M.J.JOSEPH, MAS HOTEL ANNEX, NORTH RAILWAY STATION ROAD, KOCHI-18. BY ADV. SRI.T.U.ZIYAD RESPONDENT(S): ACCUSED: ----------------------- GLADIS SASI, W/O. SASI, C/O. E.P. THILAKAN, ILLIPPARAMBIL HOUSE, NAZARETH, WEST SIDE OF CHURCH, KOCHI-2. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ``````````````````````````````````````````````````````` Crl. Appeal No. 212 of 2003 A ``````````````````````````````````````````````````````` Dated this the 20th day of July, 2010 J U D G M E N T The appellant, the complainant in C.C.No.145/1998 on the file of Additional Chief Judicial Magistrate(Economic Offence), Ernakulam, filed this appeal challenging the order of acquittal of the respondent for the offence under Section 138 of the Negotiable Instruments Act in this appeal. The case of the appellant in the complaint filed before the learned Magistrate was that for different purposes the respondent borrowed a total sum of Rs.1,50,000/- and though she promised to repay the amount after bidding two Kuries subscribed by her, positively by February, 1997, it was not paid. The appellant met the respondent and demanded the money on 20-02-1997. The respondent came to the office of the appellant and disclosed that she could not get the Kuri as she is defaulter and demanded Rs.25,000/- more so that she can bid the Kuri. Believing the words, appellant advanced Rs.25,000/-. Though he demanded the amount, she failed to repay the amount. Finally, the respondent issued Ext.P1 cheque dated 02-10-1997 for Rs.1,50,000/- drawn in her account Crl.Appeal No.212/2003 : 2 : maintained in the Fort Kochi Branch of Canara Bank. The cheque, when presented for encashment, was dishonoured. In spite of notice demanding the amount received by the respondent, she did not pay the amount and thereby committed the offence. The appellant has stated that respondent originally borrowed Rs.35,000/- on 14-09-1996 and thereafter Rs.40,000/- to send her younger sister to Gulf and then Rs.50,000/- for getting a house on mortgage. 2. The respondent pleaded not guilty. The appellant was examined as PW1. A witness was examined on the side of the respondent as DW1. Exts.P1 to P6 were marked. The learned Magistrate on the evidence found that appellant did not establish that respondent had borrowed Rs.1,50,000/- in four instalments as claimed by him and issued Ext.P1 cheque towards its repayment. 3. The argument of the learned counsel is that the learned Magistrate did not properly appreciate the case. It is argued that the respondent is admitting the signature in Ext.P1 cheque and also admitted that she had borrowed amount and issued Ext.P1 cheque. According to the learned counsel, in such Crl.Appeal No.212/2003 : 3 : circumstances the learned Magistrate is bound to draw the presumption available under Sections 118 and 139 of the Negotiable Instruments Act and as the respondent was not examined, and the evidence of DW1 do not establish that the amount borrowed was not Rs.30,000/- as claimed by the respondent, and the evidence of the appellant as PW1 should have been accepted and it should have been found that Ext.P1 cheque was issued in discharge of the debt of Rs.1,50,000/-. 4. The complaint does not disclose that there was any intention on the part of the appellant to purchase the property of the respondent. A reading of the complaint shows that the alleged transaction was a pure and simple money transaction. What is alleged in the complaint is that the respondent approached the appellant on 14-09-1996 and borrowed Rs.35,000/- to pay off the loan availed by mortgaging her family property before the Greater Cochin Development Authority. The further case is that to send the sister of the respondent, she again borrowed Rs.40,000/-. Thereafter, the respondent again borrowed Rs.50,000/- for getting a house on mortgage. All these payments were made by the Crl.Appeal No.212/2003 : 4 : appellant on the promise of the respondent that she will pay the amount on getting two Kuries by February, 1997. The complaint proceeds that thereafter in February, 1997, the appellant demanded the amount. Then, the respondent disclosed that she could not bid the Kuries as she was a defaulter and asked for a further amount of Rs.25,000/-, so that she can pay the defaulted subscriptions and thereafter bid the Kuries. It is in such circumstances the appellant would say he advanced a further sum of Rs.25,000/- and finally for repayment of the entire amount, Ext.P1 cheque was issued. 5. When the appellant was examined as PW1, the case has been changed. As per the evidence, the respondent originally borrowed Rs.35,000/- and she got the title deeds released and handed over to the appellant, and appellant decided to purchase the property of the respondent which according to him, would fetch a value of Rs.2,50,000/-. Though, in chief examination, the appellant would depose that the respondent borrowed Rs.40,000/- to send her sister to Dubai and then Rs.50,000/- to get a house on mortgage, the evidence in cross examination reveals that those Crl.Appeal No.212/2003 : 5 : payments were made after the appellant had decided to purchase the property, and if it is true, those payments could only be towards the value of the property, which ultimately the appellant had to pay. As rightly found by the learned Magistrate, if that case is true and there was an oral agreement for purchase of property, it cannot be believed that appellant will be advancing amount with the knowledge that the respondent has debt not only to GCDA but even to Chitty companies. It is pertinent to note that according to the appellant, after paying Rs.35,000/-, Rs.40,000/- and Rs.50,000/-, the appellant demanded Rs.25,000/- from the respondent on 20-02-1997. If that be the case, with that much liability, it cannot be believed that appellant would again advance Rs.25,000/- later, without getting any acknowledgment. Therefore, as rightly found by the courts below, the case of the appellant is difficult to be believed. 6. The presumption under Section 118 and Section 139 of the Negotiable Instruments Act can be drawn only when the execution of the cheque is admitted or proved. The admission of signature in a blank cheque is not admission of execution of the Crl.Appeal No.212/2003 : 6 : cheque. The respondent only admitted that she had issued Ext.P1 cheque for Rs.1,50,000/- as can be seen in Ext.P1. Her only case is that as the appellant demanded a cheque as security, she had given a signed blank cheque. That admission will never amount to an admission of execution of the cheque. To draw the presumption under Sections 118 and 139 of the Negotiable Instruments Act, appellant has to establish that respondent had drawn the cheque and issued to him. The evidence of PW1 is insufficient to prove the execution. He only deposed that the cheque was given to him. He has no a case that the cheque was written or signed in his presence. A perusal of Ext.P1 cheque shows that respondent had put her thumb impression in the cheque and the body of the cheque is written in English. When it was suggested to PW1 that the respondent does not know English and is illiterate, the appellant did not deny the case and he said that he does not know. He added that it could be that the cheque was written and brought before him. If it was executed before him, appellant would definitely know whether the cheque was written and brought before him or written and signed in his presence. If Crl.Appeal No.212/2003 : 7 : the thumb impression was affixed on the cheque in his presence, PW1 would definitely depose that the respondent affixed her thumb impression in Ext.P1 cheque in his presence. From the evidence of PW1, it is clear that he is not aware of these facts. This probabilise the case of the respondent that Ext.P1 cheque was issued as a signed blank cheque and not as a cheque for Rs.1,50,000/-. In such circumstances, the finding of the learned Magistrate that the appellant failed to establish that Ext.P1 cheque was issued in discharge of a debt or liability is perfectly correct. The order of acquittal does not warrant interference. The appeal fails and is dismissed. (M.SASIDHARAN NAMBIAR, JUDGE) aks Crl.Appeal No.212/2003 : 8 : M.SASIDHARAN NAMBIAR, J. ````````````````````````````````````````````` Crl. Appeal No. 212 of 2003 A ````````````````````````````````````````````` J U D G M E N T 20th day of July, 2010