IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 CRL.A.No. 1972 of 2009 ------------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.783/2009 Dated 23/09/2009 CRA.477/2005 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM ...................................................... PETITIONER RESPONDENT/COMPLAINANT: --------------------------------------------------------------- WILFRED GOMEZ, PET DALE, PATTATHANAM KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): ACCUSED: ---------------------------------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. B.S.RAVI SANKAR, SREEDHARA, BEHIND PWD OFFICE, THAMARAKKULAM, KOLLAM. R1 BY SMT.LOWSY, PP. R2 BY SRI.R.SATISH KUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU V.K.MOHANAN, J. ------------------------------- Crl.A.No.1972 of 2009 ------------------------------- Dated this the 2nd day of November, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant herein, as he is aggrieved by the judgment dated 29.6.2006 of the appellate court namely, the court of the Addl. District and Sessions Judge (Ad hoc)II, Kollam, by which the learned Judge, allowed the appeal preferred by the accused, after setting aside the conviction and sentence imposed by the trial court. 2. The case of the appellant/complainant is that, the respondent/accused availed a loan of Rs.1,50,000/- from him and issued a cheque dated 22.6.2000 for the said amount and when the same presented for encashment, dishonoured and the accused has not repaid the amount inspite of the statutory notice sent by the appellant herein. Thus according to the appellant, the accused has 2 Crl.A.No.1972 of 2009 committed the offence punishable under Section 138 of Negotiable Instruments Act. 3. With the above allegation, in the complaint, the complainant approached Judicial First Class Magistrate court-I, Kollam, and cognizance was taken for the said offence and instituted C.C.No.749/02. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6. From the side of the defence, though no document is produced, Dws.1 and 2 are examined. The trial court after considering the entire evidence on record has found that the accused had borrowed a sum of Rs.1,50,000/- from the complainant and issued cheque towards the repayment of the said amount, but the same was dishonoured and accordingly found that the accused is guilty of the offence under Section 138 of Negotiable Instruments Act and he is accordingly sentenced to undergo simple imprisonment for 6 months and to pay compensation of Rs.1,50,000/- to PW1 under Section 357(3) 3 Crl.A.No.1972 of 2009 of Cr.P.C. The default sentence is fixed as simple imprisonment for 2 months. 4. Challenging the above findings, conviction and sentence of the trial court, the respondent herein, who is the accused before the trial court, preferred an appeal and by judgment dated 29.6.2006 in Crl.A.No.477 of 2005 the court of Additional District and Sessions Judge (Ad hoc)-II, Kollam, allowed the appeal, setting aside the conviction and sentence imposed against the accused by the trial court and accordingly the accused is acquitted under Section 386 of Cr.P.C. 5. The appellant herein initially filed Crl.L.P.No.783 of 2009, seeking leave of this Court to file an appeal against the judgment of the appellate court which was allowed by order dated 23.9.2009 in Crl.L.P.No.783 of 2009 and thus this appeal is preferred. 6. I have heard Sri.Johnson Gomez learned counsel for the appellant and Sri.R.Satish Kumar learned counsel for 4 Crl.A.No.1972 of 2009 the respondent/accused. 7. Learned counsel for the appellant vehemently submitted that, the lower appellate court has miserably failed to consider the fact that the 2nd respondent/accused has admitted that he had issued Ext.P1 cheque and the fact that he refused to send any reply to the statutory notice issued by the appellant. According to the learned counsel, the learned Judge of the appellate court had denied the benefit of Sections 139 and 118 of the Negotiable Instruments Act. Thus according to the learned counsel, the findings of the learned Sessions Judge are not legally sustainable and there is no factual basis for the reason assigned by the learned Judge that, there is no enforceable debt due to the complainant. 8. On the other hand, learned counsel for the respondent strenuously submitted that the complainant has miserably failed to prove the transaction, and execution and issuance of the cheque and therefore, the complainant is 5 Crl.A.No.1972 of 2009 not entitled to get presumption under Section 139 of the Negotiable Instruments Act and therefore the findings of the learned Judge of the appellate court is fully correct and legal. According to the counsel, the appellate court came into its own finding on the basis of the appreciation of the evidence and materials on record and accordingly the accused is acquitted and the appellant herein is miserably failed to make out any case so as to interfere with such an order of acquittal. 9. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the counsel for the respondent. I have also gone through the judgment of the trial court as well as the appellate court and the evidence and materials on record. In the light of the rival pleadings and in the light of the materials and evidence on record, the only question to be considered is whether the appellate court is correct in its finding and acquitting the accused. 6 Crl.A.No.1972 of 2009 10. The specific case of the complainant/appellant is that, the accused borrowed a sum of Rs.1,50,000/- and issued the cheque in question towards the discharge of the said liability but the same was dishonoured, when presented for encashment, on the ground “insufficiency of funds” in the account maintained by the accused and the accused has not repaid the amount inspite of the formal demand notice caused to be issued by the complainant. Whereas the case set up by the accused is that, he had borrowed a sum of Rs.25,000/- from the complainant previously and as a security for the said transaction, he issued Ext.P1 cheque and the said cheque is not returned inspite of the fact that the accused repaid the said amount on 9.1.1996. The appellate court after evaluation of the evidence of the complainant and after the scrutiny of the materials including the complaint, specifically found that, in the complaint there is no specific averment as to on which date the accused obtained the amount. When the complainant 7 Crl.A.No.1972 of 2009 was examined as PW1, he deposed that the amount was borrowed on 22.6.2000 and the accused has received that amount from his house on that date. During his examination, the complainant has deposed that, the accused requested him for the loan, prior to the date of availing of the loan on 22.6.2000. The appellate court has found that Ext.P1 cheque is dated 22.6.2000 and as per the evidence on record, the borrowal and the discharge was on the same date. Thus according to the learned Judge of the appellate court, the transaction alleged by the complainant does not make a case to proceed under Section 138 of Negotiable Instruments Act The above reasoning of the learned Judge of the appellate court appears to be correct and legal, in the light of the evidence and materials on record. 11. According to me, the above reasoning of the learned Judge for acquitting the accused has to be examined in the backdrop of the defence taken by the accused. According to the accused, when he obtained a 8 Crl.A.No.1972 of 2009 loan of Rs.25,000/- from the complainant, he had issued a cheque as security to the complainant but the same was not returned, inspite of the fact that the said debt was cleared. Thus it can be seen that the accused has made out a probable case as to how Ext.P1 cheque reached in the hands of the complainant. It is also relevant to note that to prove the case of the complainant, the only evidence is that of the complainant himself, who was examined as PW1 and the documentary evidences produced by the complainant are mainly with respect to the dishonour of the cheque and sending of the lawyer notice and Ext.P1 is the dishonoured cheque. Therefore, absolutely there is no independent evidence to prove the transaction claimed by the complainant. The uncorroborated evidence of PW1, who is the complainant, is unbelievable since the availing of loan and the discharge of the same was on the same date. Therefore, it can be seen that the complainant has miserably failed to prove the transaction as well as the 9 Crl.A.No.1972 of 2009 execution and issuance of the cheque, especially in the light of the defence version with respect to the earlier transaction. 12. The learned counsel for the appellant strenuously submitted that the approach of the learned Judge of the appellate court is illegal and arbitrary, since no reason is assigned by the learned Judge to interfere with the findings of the learned Magistrate and the conviction recorded by him. According to the learned counsel, by the issuance of the cheque itself, the drawer has undertaken certain liabilities and in the judgment of the appellate court there is no discussion regarding these aspects. It is pointed out by the learned counsel that though the appellate court has held that the appellant/complainant is entitled to get presumption under Section 139 of the Negotiable Instruments Act in the very same sentence, the learned Judge has held that the accused has rebutted the presumption for which there is no evidence at all. Thus 10 Crl.A.No.1972 of 2009 according to the learned counsel, the matter requires reconsideration by the appellate court. 13. I am unable to sustain the above contentions. In para 6 of the judgment of the appellate court, the learned Judge has already considered the evidence and materials on record and the final outcome on the basis of the discussions of the evidence and materials. It may be true that when PW1 was examined he had given some evidence to the effect that the accused approached him previously and demanded for loan and the cheque was given with an understanding that the same should be presented for encashment after the expiry of a specific period etc. As rightly pointed out by the learned counsel for the respondent that, the learned Judge of the appellate court has found that absolutely there is no pleadings in the complaint in this direction. The deposition of PW1 can be treated only as a result of an after-thought, since the date of borrowal and date of issuance of the cheque happened to be 11 Crl.A.No.1972 of 2009 on the very same date. The learned counsel for the appellant submitted that, though statutory notice has sent by the complainant and received by the accused, no reply is given and if a reply had issued by the accused, the evidence of the complainant would have been in a different manner and therefore according to the learned counsel, in the absence of any reply notice, the accused cannot be benefited on the basis of 'the date of transaction' as mentioned by the complainant in his deposition. In the present case, the signature in Ext.P1 cheque is admitted by the accused and therefore the trial court as well as the appellate court has held that the complainant/appellant is entitled to get presumption under Section 139 of the Negotiable Instruments Act, which finding according to me is correct. Then the further question to be considered is whether the accused is succeeded in rebutting the presumption. It is true that though the accused has taken a contention to the effect that the cheque in question is the 12 Crl.A.No.1972 of 2009 one which entrusted with the complainant, connected with a previous transaction of availing Rs.25,000/-, no evidence is adduced. But the accused admitted the transaction with the complainant though it is not in the way as claimed by the complainant. The admission to that effect can also be considered to find out whether the presumption is rebutted by the accused. The Apex court in the decision reported in Narayana Menon Vs. State of Kerala [2006(3) KLT 404 (SC)] has held that in order to rebut the presumption, the accused need not mount to the box and he can make use of the circumstances involved in the case and the evidence of the complainant. In the present case, though the accused has not sent reply notice, it is for the complainant to establish his case with sufficient pleadings and evidence. As rightly pointed out by the learned Judge of the appellate court, there is no pleadings regarding the transaction and absolutely there is no explanation from the side of the complainant, supported by evidence as to why, if the 13 Crl.A.No.1972 of 2009 availing of loan was on 22.6.2000, the cheque had issued on the very same date. The above circumstances and the absence of any convincing explanation for the above question, is a ground which can be pressed into service by the accused to probabilise his case. The above situation coupled with the case of the defence regarding the earlier transaction appears to be more probable than the case of the complainant. The evidence produced by the complainant, as I indicated earlier, is only the interested version of PW1 and those documents produced are mainly connected with the dishonour of the cheque and the statutory demand. There is no contemporary document to prove the transaction. As pointed out by the counsel for the appellant that, if the cheque was given on the date of availing of the loan itself with a stipulation to present the cheque for encashment after a particular period, the said contention could have been considered positively. But in the present case there is no such pleadings in the 14 Crl.A.No.1972 of 2009 complaint. Therefore, whatever be deposed by PW1, so as to circumvent the adverse situation, ie., the date of borrowal and the date of issuance of the cheque on the same date, has no legal consequence at all. In the light of the above discussion and in view of the materials and evidence referred above, I am of the view that, the Judge of the appellate court is fully correct in his finding and there is no compelling situation or substantial reason to interfere with the order of acquittal recorded by the lower appellate court. In the result, this appeal fails and accordingly the same is dismissed. V.K.MOHANAN, Judge ami/