IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 CRL.A.No.97 of 2001 (A) ----------------------------- ST.5507/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA. .................... APPELLANT/COMPLAINANT: --------------------------------- C.J.SHAJAN, S/O JOHN, THUMBUR P.O. THRISSUR, REP. BY HIS POWER OF- ATTORNEY HOLDER, JOY JOSEPH, S/O JOSEPH, CHOUVKKARAN HOUSE, OLARIKKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR DIST. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS/ACCUSED: ------------------------------ 1. N.L.DAVIS, PROPRIETOR, KERALA FOOT WEARS, WESTERN BAZAAR, ARANATTUKARA P.O., THRISSUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.97 of 2001 ------------------------------------------------ Dated this the 31st day of January, 2008 JUDGMENT This appeal with leave is filed by the complainant in S.T.5507/96 on the file of the Judicial First Class Magistrate's Court, Irinjalakkuda challenging the acquittal of the accused under Section 255(1) of the Cr.P.C vide judgment dt.09/03/200 in S.T.5507/96 aforesaid. 2. The first respondent/accused though served has not entered appearance. Heard the counsel for the appellant and the Public Prosecutor for the second respondent/ State. 3. The appellant filed complaint 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 Ext.P1 cheque dt. 21/05/96 for an amount of Rs.24,000/- drawn on Crl. Appeal No.97 of 2001 -2- the State Bank of India, Thrissur branch was issued to him by the first respondent in discharge of amounts due to him; that when the cheque was sent for collection through the Irinjalakkuda branch of Canara Bank, it was returned unpaid by the drawee bank for reason of “insufficiency of funds” in the account of the first respondent; that thereupon Ext.P4 notice was caused to be issued through lawyer under Ext.P5 postal registration receipt to the first respondent intimating him of the dishonour and calling upon him to make payment of the amount covered by the cheque that the first respondent on receipt of the notice under Ext.P6 acknowledgment card has issued a reply setting up false contentions and he has not paid the amount covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the Crl. Appeal No.97 of 2001 -3- N.I. Act. 4. On appearance of the first respondent in the court below pursuant to receipt of summons, he was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. On the side of the appellant PWs.1 to 3 were examined and Exts.P1 to P8 were got marked. On the prosecution closing their evidence the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circum- stances appearing in evidence against him and maintained that he is innocent. According to him, Ext.P1 cheque is one issued by way of security while receiving the prize amount in the kuri. Thereafter, PW3 was further examined reopening the evidence in the case and through Crl. Appeal No.97 of 2001 -4- him Ext.P8 is got marked. Thereafter, the first respondent was again questioned under Section 313 Cr.P.C. Thereupon, he has denied the evidence tendered by PW3 that the endorsement on the reverse of Ext.P8 was being made by him under his signature. 6. The court below considered the case in the light of the evidence adduced as aforesaid; found that the presumption available under Section 139 of the N.I. Act in favour of the appellant stood rebutted by preponderance of probabilities which suggests that the case set up by the first respondent is true and consequently, acquitted the accused under Section 255(1) Cr.P.C. 7. It is vehemently contended before me by the learned counsel for the appellant that the finding entered into by the court below that Ext.P1 cheque was not one issued to the appellant in discharge of debt due to him is Crl. Appeal No.97 of 2001 -5- incorrect; that the presumption in favour of the payee of the cheque under Section 139 of the N.I. Act should have been drawn in favour of the appellant and the first respondent convicted of the offence under Section 138 of the N.I. Act. 8. PW1 is the appellant/complainant. According to him, the first respondent had borrowed an amount of Rs.24,000/- from him in May, 1996 and on demand for return of the amount he was issuing Ext.P1 cheque dt.21/05/96 in discharge of the said debt coming over to his house and filling up Ext.P1 and signing it in his presence. In cross examination, he has deposed that his brother in law Roy Joseph is accompanying him whenever he comes to court. Obviously, there is nothing wrong in his accompanying PW1 as Roy Joseph is also the power of attorney holder of the appellant. However, to the specific question Crl. Appeal No.97 of 2001 -6- asked in cross examination as to whether he (Roy Joseph) is not a director of Major Kuries the appellant has pleaded ignorance. Again when he was asked about R.P.Rappai he stated that he is the husband of the son of his paternal uncle but that he is not aware as to whether the said R.P.Rappai is Managing Director of Major Kuries. PW1 has also deposed that other than Ext.P1 no other record had been given by the first respondent. This shows that the amount of Rs.24,000/- was being advanced by the appellant/PW1 without any record whatsoever and that only when repayment of the amount was demanded Ext.P1 cheque was issued. When the appellant closed his evidence examining only PWs.1 to 3 and when the first respondent was called upon to enter upon his defence the said Rappai is examined as DW1. He has deposed that he is Managing Director of Major Kuries and that he knows the first Crl. Appeal No.97 of 2001 -7- respondent. He has also stated that the appellant is the son of his mother's paternal uncle and also that Roy Joseph, the power of attorney holder of the appellant is a director of Major Kuries. He has proved Ext.D1 as the kuri security bond executed by the first respondent while he prized the kuri. He has also admitted that Ext.P1 is one of the cheques made mention of in Ext.D1 as having been entrusted with him in his capacity as Managing Director of Major Kuries and Loans. However, to the specific question put to him as to whether Ext.P1 cheque delivered to them in the kuri transaction evidenced by Ext.D1 was not being misused for filing a complaint passing it on to the appellant, that is denied by DW1. But DW1 has further stated that the receipt maintained in the office would show that the records including Ext.P1 cheque were returned. It is to prove return of Ext.P1 Crl. Appeal No.97 of 2001 -8- cheque that Ext.P8 was produced by the appellant after the defence also closing their evidence. After marking of Ext.P8 recalling PW3 for further examination, the first respondent was further questioned and he has denied when the incriminating circumstance of the endorsement in Ext.P8 was put to him that it is not correct to say that Ext.P1 cheque was returned. He has further stated that the entry regarding return of cheque in Ext.P8 was being falsely created. 9. To appreciate the truth of the rival contentions, it is necessary to examine Exts.D1 and Ext.P8. Ext.D1 is executed as a “Kury Karar”. It was being executed undertaking to pay up an amount of Rs.22,500/- in fifteen instalments by the first respondent and his sureties. It is further, stated in Ext.D1 that towards payment of the instalments, the first respondent is Crl. Appeal No.97 of 2001 -9- entrusting six cheques of which Ext.P1 cheque is the first one mentioned. The further recital is that the instalments of Rs.1,500/- each has to be paid each month and has to be got endorsed in the chitty pass book and that in case of default of any one instalment, that has to be paid up with interest at 12% per annum along with the next instalment and that in the event of the next instalment also being defaulted, the entire amount will be realised in lump. If payment is to be made on the due dates in cash and it has to be got endorsed in the chitty pass book, one fails to understand as to why for fifteen instalments six cheques are received. There is no mention in Ext.D1 as to whether amounts are filled up in the cheques made mention of. However, no one would receive a cheque by way of security unless it is signed by the account holder. Hence, obviously, all the six cheques must have been Crl. Appeal No.97 of 2001 -10- cheques signed by the first respondent. If amount had been filled up in Ext.P1 at the time of delivery as per Ext.D1 agreement then certainly, that would not have been an amount as seen in Ext.P1 at present as the amounts seen therein is Rs.24,000/- whereas the total amount due under Ext.D1 agreement is only Rs.22,500/- and Ext.P1 is only one among the six cheques. Further, the endorsement on Ext.P8 security application shows that from out of the six cheques, cheque bearing number 125599 dt.10/12/93 for Rs.6,000/- is sent to bank for collection as on 31/12/93 from which the date 31/12/93 is scored off and 12/01/94 is inserted. In the case of that cheque also which is another cheque delivered under Ext.D1 on 11/12/92 one fails to understand as to how it was for Rs.6,000/-. Obviously, the date and the amount had been put by the foreman of the kuri only to get it encashed. The details of Crl. Appeal No.97 of 2001 -11- the accounts in the kuri are not produced to show as to how much amount was paid by the first respondent in cash as agreed to in Ext.D1 and which all cheques were got cashed and for how much amount. A further endorsement also is seen above the endorsement made mention of above that cheque numbers 125578 and 125579 were received on 10/04/93 and after giving double bracket it is recorded Rs.3,000/- each. If that be so, one fails to understand as to how the amount of Rs.24,000/- is seen in cheque No.125578 which is Ext.P1 cheque produced in this case. No explanation at all is forthcoming with respect to all these aspects. 10. Counsel for the appellant made a request to remand the case to prove the endorsement on 08/04/94 alleged to be made by the first respondent to the effect that after discharging of instalments in the kuri, Crl. Appeal No.97 of 2001 -12- documents and cheques are received back. In view of the discussion I have made above, there is no meaning in remanding the case for proving the said endorsement alleged to have been made by the first respondent on 08/04/94 as whatever be the evidence that is adduced the matters discussed above are telling circumstances to show that Ext.P1 was a blank cheque entrusted with the foreman of the kuri under Ext.D1 agreement and that it was being misused to bring Ext.P1 into existence filling up the name of the appellant as also the amount. The contention of the first respondent that the appellant is a close relative of the foreman of Major Kuries and Loans; that Ext.P1 is a cheque leaf entrusted with Major Kuries under Ext.D1 and that was misused to advance a claim for amount not actually due setting up the appellant who is their close relative stands highly, probabilised in the circum- Crl. Appeal No.97 of 2001 -13- stances when the evidence of PW1 the appellant shows that his brother-in-law Roy Joseph is his Power of Attorney Holder and he pleads ignorance as to whether he is director of Major Kuries and he further states that R.P.Rappai is the husband of the daughter of his paternal uncle but he pleads ignorance as to whether the said Rappai is Managing Director of the said Major Kuries. The said Rappai is examined as DW1. He also has admitted that the appellant is son of his mother's paternal uncle and that Roy Joseph/the Power of Attorney Holder of the appellant is a director of Major Kuries of which he is the Managing Director. Thus, in any event, the presumption available in favour of the payee and holder of Ext.P1 cheque under Section 139 of the N.I. Act stands rebutted in the instant case by preponderance and probabilities brought out in evidence in the Crl. Appeal No.97 of 2001 -14- case and there is also absolutely no evidence furnished as regards advancing of any amount by the appellant to the first respondent. In the circumstances, the court below was rightly acquitting the first respondent disbelieving the case of the appellant. The acquittal of the first respondent in the circumstances deserves only to be confirmed and I do so. 11. This appeal, in the circumstances stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-