IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 CRL.A.No.967 of 2001 (D) ------------------------------ ST.2509/1995 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, PONANI. .................... APPELLANT/COMPLAINANT: --------------------------------- KATTUPARAMBIL KRISHNAN, S/O KARIYAN, PIDAVANOOR, PONNANI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/ACCUSED & STATE: ----------------------------------------- 1. P.C.SAROJAM, D/O KALIKUTTY, HOUSE NO.1/193, SHOP ROAD, KATTAKAMBAL, TRICHUR DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31 BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.967 of 2001 ------------------------------------------------ Dated this the 7th day of February, 2008 JUDGMENT This is appeal filed by the complainant in S.T.2509/95 on the file of the Judicial First Class Magistrate's Court, Ponnani assailing the acquittal of the first respondent under Section 255(1) of the Criminal Procedure Code of offence under Section 138 of the N.I. Act. 2. Complaint was filed by the appellant in the court below complaining of commission by the first respondent of an offence punishable under Section 138 of the N.I. Act inter alia on the allegation that the first respondent borrowed an amount of Rs.85,000/- from him and towards repayment of the said amount, she issued Ext.P3 cheque in his favour drawn on her account at the Changaramkulam branch of the South Indian Bank; that on presentation of the said cheque through his Crl. Appeal No.967 of 2001 -2- bankers namely the State Bank of Travancore, Changaramkulam branch it was returned dishonoured for reason of “insufficiency of funds” by the drawee bank under Ext.P4 memorandum; that Ext.P3 along with Ext.P4 memorandum was transmitted to him by his bankers under Ext.P5 memorandum on 05/06/95; that on receipt of information regarding the dishonour of the cheque he informed the first respondent of the same and thereupon, the first respondent requested a further period of 45 days to enable her to make repayment of the amount; that on the expiry of the said 45 days the first respondent did not repay the amount but asked him to re-present the cheque giving him to understand that there is sufficient funds in her account then to honour Ext.P3 cheque; that accordingly, it was again presented on 27/07/95 through his account at the Changaramkulam branch of the State Bank of Travancore, but the cheque thus forwarded to Crl. Appeal No.967 of 2001 -3- the drawee bank was again dishonoured for reason of “insufficiency of funds” by the drawee bank under Ext.P6 memorandum and the said memorandum along with Ext.P3 cheque was again transmitted to the appellant by his bankers under Ext.P7 memorandum dt.28/07/95; that thereupon, the original of Ext.P8 notice was caused to be issued through lawyer intimating the first respondent of the dishonour of the cheque for reason of “insufficiency of funds” and demanding payment of the amount covered by the cheque under Ext.P8(a) postal registration receipt and that was received by the first respondent under Ext.P8(b) postal acknowledgment card on 04/08/95, but she has not issued any reply to the said notice and has also not made payment of the amount covered by Ext.P3 cheque either within the statutory period or ever thereafter and she has thereby committed an offence punishable under Section 138 of the N.I. Act. Crl. Appeal No.967 of 2001 -4- 3. On appearance of the first respondent in the court below pursuant to receipt of summons, the learned Magistrate read over the particulars of the offence and explained it to her and questioned her. Thereupon, she pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the appellant, he gave evidence as PW1 and got marked Exts.P1 to P8 (c) in evidence. On the appellant closing his evidence, the first respondent was questioned by the court below under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against her and maintained that she is innocent. According to her, she had borrowed Rs.10,000/- from the appellant on 16/11/94 on the strength of four signed blank cheques and patta in relation to the property belonging to Thami the elder brother of her husband; that on 30/01/95 she repaid the Crl. Appeal No.967 of 2001 -5- entire amount of Rs.10,000/- with interest Rs.2,000/- and settled the transaction but the appellant returned only the patta in relation to the property but did not return the four cheques and one out of those four cheques is misused to bring into existence Ext.P3 and that the date, amount etc. in Ext.P3 cheque is not written by her; that one another cheque is utilised by him to file a complaint through one Pavithran and that an yet another complaint was caused to be filed using another cheque through one Haridevan; that she has been acquitted in that case and that she is not guilty of offence as alleged. She has tendered evidence as DW1 and has got marked in evidence Exts.D1 to D5. The court below considered the case in the light of the evidence so adduced; and on a detailed discussion of the entire evidence in the case came to the conclusion that the defence case is more probable and that the appellant has Crl. Appeal No.967 of 2001 -6- miserably failed to establish the case of his having lent Rs.85,000/- and issuance by the first respondent of Ext.P3 cheque as being in repayment of the said amount and consequently, acquitted the first respondent under Section 255(1) of the Criminal Procedure Code of offence punishable under Section 138 of the N.I. Act. Hence, this appeal. 5. It is vehemently contended before me by the learned counsel for the appellant that the court below without any reliable material was coming to the conclusion that the contention raised by the first respondent is more probable; that in fact, the first respondent has not even issued a reply to Ext.P8(a) notice intimating her of the dishonour of the cheque; that the case suggested to PW1 in cross examination and the case set up by the first respondent are inconsistent; and that therefore, the court below should have found that the case of the Crl. Appeal No.967 of 2001 -7- appellant is genuine and more probable and that the first respondent should have been convicted of offence punishable under Section 138 of the N.I. Act. 6. It is true that the first respondent has not issued any reply to Ext.P8(a) notice issued by the appellant through counsel intimating her of the dishonour of Ext.P3 cheque and demanding payment of the amounts covered by the said cheque. That no doubt is a circumstance in favour of the appellant. Further, as rightly contended by the counsel for the appellant, the suggestion in cross examination of PW1 is as to whether while he was working under the first respondent a few of her cheques which happened to be lost was not being obtained by him; and that was being used to file the complaint whereas the case set up by the first respondent is that Ext.P3 is made up on one out of the four blank signed cheque leaves entrusted with the appellant Crl. Appeal No.967 of 2001 -8- along with the patta of the property belonging to the elder brother of her husband while she availed of a loan of Rs.10,000/- from him and that on repayment of the said amount with interest the patta was returned but the cheques were not returned; and that those cheques are being utilised for filing complaints against her -one by the appellant himself; another by one Pavithran and a third one by one Haridevan. Ext.D1 is produced to show that the appellant was retaining the four cheques which had been entrusted with him on repayment of the loan amount returning only the patta in the name of Thami the elder brother of the first respondent's husband. The wording in Ext.D1 is in such a manner that the meaning it is intended to convey cannot be deciphered and therefore, much reliance cannot be placed on that. The first respondent has produced photostat copy of cheque alleged to be issued by her to Pavithran on the basis of Crl. Appeal No.967 of 2001 -9- which he has filed a complaint and that is marked Ext.D3. It is the definite case of the first respondent that the contents in Ext.P3 cheque is not written by her and that is not disputed by the appellant either. In the same handwriting is Ext.D3 cheque and in both, in writing the amount “thousand” the spelling used is “thousant”. This means both the cheques are filled up by one and the same person. As to who is the one who has filled up these cheques is not a matter on which there is evidence. However, the fact that the appellant has no case that Ext.P3 is filled up by the first respondent makes things fishy. 7. There is absolutely no evidence furnished in the case by the appellant as to the source which he has, so as to enable him to advance an amount of Rs.85,000/- to the first respondent in 1995 viz. more than twelve years back when the money value was much on the high side than it is at present. Further, Crl. Appeal No.967 of 2001 -10- it is strange that such a huge amount would have been advanced without any record whatsoever when it is the case of the appellant that the amount was advanced on 26/12/94 for the first respondent to purchase a property without any record whatsoever and Ext.P3 cheque was being issued according to the appellant only on 24/05/95 after about five months. The appellant as PW1 has deposed that the first respondent was inspector in Peerless Investments and that at that time he had worked under the first respondent and it was then that the amount was advanced to the first respondent. There is no whisper as to what was the salary or emoluments of the appellant who was working under the first respondent in Peerless Investments, the post of whom itself was only as an Inspector. In cross examination he has deposed that he is engaged in repair of cycles and that he will get an amount of Rs.300/- per day from his Crl. Appeal No.967 of 2001 -11- job. All the same, he has stated that he is not in the habit of depositing the amount in bank and has not paid income tax as well. According to him, he has not received any record whatsoever at the time of advancing the amount. He has deposed further however, that there are records in his possession to show that as on 26/12/94 he was in possession of sufficient amount so as to advance the amount covered by the cheque. But, no such record has been produced. Further, though he has stated that one Achuthan was witness to the advancing of loan no attempt at all has been made to cite and examine him as a witness. Though Exts.P1 and P2 are produced to show that there was money transaction between the first respondent and the appellant that does not have any reference to the amount alleged to have been advanced under Ext.P3 cheque and further, as those letters do not bear any date it could even be that the reference therein Crl. Appeal No.967 of 2001 -12- was in relation to a loan transaction which the first respondent has stated that she was having with the appellant and which has been settled by payment of an amount of Rs.12,000/- including interest of Rs.2,000/-. The case of the first respondent is that the loan that was availed of was an amount of Rs.10,000/- and that was on 16/11/94 and that was discharged on 30/01/95 by making payment of Rs.12,000/-. Hence, Exts.P1 and P2 has no relevance at all in support of the case of the appellant. 8. The contention of the learned counsel for the appellant that the suggestion put to PW1 in cross examination that a few of the cheques of the first respondent happened to be lost while the appellant was working under her and that was obtained by the appellant and it is misusing such a cheque that the present complaint was filed belies the case of the appellant stated when questioned under Section 313 Cr.P.C is not of much merit as the Crl. Appeal No.967 of 2001 -13- suggestion in cross examination was made by the counsel and it was not being put to PW1 as the case set up by the first respondent. On the other hand, the evidence adduced on the side of the defence shows that as stated by the first respondent one Pavithran also has filed a complaint against her on the basis of the original of Ext.D3 cheque and for conducting that case Pavithran has executed Ext.D2 power of attorney in favour of one Vijayakumar, son of Kunjan wherein the appellant is an attestor. Ext.D4 is notice issued on behalf of Pavithran. Similarly, Ext.D5 is notice issued through lawyer by one O.P.Haridevan made mention of by the first respondent. Strangely enough it is also worth mentioning that Ext.P8 notice issued on behalf of the appellant; Ext.D4 notice issued on behalf of the said Pavithran and Ext.D5 notice issued on behalf of the said Haridevan made mention of by the appellant are all issued by Crl. Appeal No.967 of 2001 -14- Advocate Sri.P.K.Mohandas of Manjeri and this aspect also suggests that Haridevan, Pavithran and the appellant have something in common and that the cheques issued at least to the appellant and to Pavithran as evidenced by Exts.P3 and D3 are filled up by the same person committing the very same mistake in spelling the word “thousand” using the last letter as 't' instead of 'd' while filling up the amounts in those cheques. As rightly observed by the court below these are circumstances which render the genuineness of the case alleged by the appellant suspicious on preponderance of probabilities. The Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008 (1) KHC 410 (SC) has held that existence of legally recoverable debt is not a matter of presumption under Section 139 of the N.I. Act and that it merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt Crl. Appeal No.967 of 2001 -15- or other liability; and that Section 139 does not give rise to a presumption that there existed a debt. In the instant case, the evidence of the appellant as PW1 and the presumption under Section 139 of the N.I Act to the extent available, will not establish the case of the appellant as there is absolutely no evidence of the appellant having come by funds to advance so much as Rs.85,000/- to the first respondent when the appellant himself is a cycle repairer and he has no case of his having any other assets or bank account. Records to evidence his possession of funds stated to be available is not produced also. By preponderance of probabilities in the circumstances discussed above, the first respondent has been able to rebut the presumption available under Section 139 of the N.I. Act in favour of the appellant. The court below, in the circumstances, was rightly coming to the Crl. Appeal No.967 of 2001 -16- conclusion that the appellant has not established that Ext.P3 cheque was issued to him by the first respondent in discharge of debt of Rs.85,000/-. In the circumstances, concurring with the court below, I conclude that the first respondent is not guilty of offence punishable under Section 138 of the N.I. Act. His acquittal by the court below in the circumstances has only to be upheld and this appeal is devoid of any merit. 9. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-