IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 CRL.A.No. 2023 of 2003 -------------------------------------- CC.368/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANT/COMPLAINANT: V.DANIEL, NEELIYATHU VEEDU, MELOOD MURI, PERINGINAD VILLAGE, ADOOR TALUK. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENTS/ACCOUNT AND STATE: 1. RAJENDRAN PILLAI, MUKALETHU VEEDU, MELOOD MURI, PERINGINAD VILLAGE, ADOOR TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.D.KISHORE R2 BY PUBLIC PROSECUTOR SRI.TJ.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 2023 of 2003 --------------------------- JUDGMENT The appellant is the complainant in C.C.No. 368/00 on the file of the Judicial First Class Magistrate's Court, Adoor. He filed the complaint alleging that the first respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The learned Magistrate, after considering the case, acquitted the accused under Section 255(1) Cr.P.C. Hence this appeal. 2. The case of the appellant is that the first respondent/accused had borrowed an amount of Rs.75,000/- from him and in discharge of that liability, he issued Exhibit P1 cheque dated 4.10.1999 and on presentation of the same for encashment through his bankers, it was dishonoured by the drawee bank for the reason of insufficiency of funds in the account of the first respondent and that despite issuance of notice intimating the CRA 2023/03 2 first respondent of dishonour of the cheque and demanding payment of the amounts covered by the cheque, he has not made payment of the amounts either within the statutory period or ever thereafter and thereby the first respondent has committed an offence punishable under Section 138 of the Act. 3. On appearance of the first respondent/ accused in the court below, he was served with copies of all relevant records in the case and he was questioned, 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. 4. The appellant/complainant gave evidence as PW1 and got marked in evidence Exhibits P1 to P6. On the appellant/complainant closing his evidence, the first respondent/accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in CRA 2023/03 3 evidence against him and maintained that he is innocent. According to him, he had availed of an amount of Rs.25,000/- by way of loan from the appellant, executing a promissory note for an amount of Rs.50,000/- and delivering a blank signed cheque leaf and a blank signed stamp paper worth Rs.50/- and the condition was that interest has to be paid at the rate of Rupees five per hundred and that the principal need be returned only in instalments; that accordingly, he was paying interest promptly; that he returned Rs.10,000/- during November 1999; that it was on 17.11.1999 that he received lawyer notice from the appellant demanding repayment of Rs.25,000/- with interest within ten days; that thereupon, he approached the appellant and he was told that no complaint would be filed; that it is enough that he discharges the balance debt; that he repaid a further amount of Rs.10,000/- in December 1999 and the entire balance amount of Rs.5,000/- during February 2000 and CRA 2023/03 4 settled the transaction; that when he asked for return of the documents, the appellant stated that the prevalent rate of interest is Rupees ten per hundred and therefore, interest has to be paid at least at the rate of Rupees seven per hundred and on such payment, the records can be returned and that thereafter he knew about the case only on receipt of summons from the court. According to him, the complaint has been filed as he has not paid the excess interest demanded by the appellant. On the defence side he got examined DW1 and got marked Exhibits D1 and D2. 5. The appellant, as PW1, has furnished formal proof of Exhibit P1 cheque by tendering evidence in that behalf. However, he has not adduced any further evidence to prove the original transaction. It is contended before me by the learned counsel for the appellant that when there is formal proof with respect to execution of Exhibit P1 cheque furnished by the appellant, presumption under CRA 2023/03 5 Section 139 of the Act is available in favour of the appellant, who is the payee and holder of the cheque and therefore, the court below went wrong in accepting the defence contention and acquitting the first respondent of offence under Section 138 of the Act. The question to be considered is as to whether presumption under Section 139 of the Act is available in favour of the appellant or it stands rebutted by the totality of the evidence adduced in the case. 6. The appellant, as PW1, has stated in cross- examination that he has lent amounts only to the first respondent and not to any one else and that on prior occasions also he had lent money to the first respondent, but, advancing of such loans were not on interest; that on 3.9.1999, he was advancing the present loan to the first respondent at his shop and then there was no witness present; that though he had advanced loan on prior occasions also to the first respondent, he does not remember the CRA 2023/03 6 dates thereof, but, he asserted that he had not received any promissory note from the first respondent. To the specific question as to whether amounts had been advanced to the first respondent on 5.11.1998, he has given an emphatic answer in the negative. He has also asserted that apart from issuance of Exhibit P4 notice, he has not caused any other notice being issued in relation to any other amount. All the same, when confronted with Exhibit D1 notice, the appellant admitted that it is a notice sent on an earlier occasion by him through his counsel. Though there is no mention of Exhibit P1 cheque in Exhibit D1 notice dated 19.8.1999, the appellant has admitted that the demand in Exhibit D1 notice is for the amount of Rs.75,000/- covered by the cheque. If that be so, one fails to understand why the fact of issuance of the cheque, prior to the issuance of Exhibit D1 notice, had not been mentioned. But, on perusing the date of the cheque and Exhibit D1 notice, it CRA 2023/03 7 can be seen that Exhibit P1 cheque had not been issued as on the date of issuance of Exhibit D1 notice. The appellant has answered in the negative when asked as to whether along with the cheque a promissory note also had not been executed by the first respondent. Further, a suggestive question was put to the appellant in cross-examination that he was receiving a pronote and a blank cheque on 5.11.1998 and he was instituting the complaint falsely after receipt of the amount covered by the promissory note, but, he has denied the said suggestion. In re-examination, he has been made to say that he is not aware if notice had been caused to be issued on any earlier occasion. However, the appellant also stated in re- examination that ever before the transaction complained of, he had not advanced any amount to the first respondent/accused in excess of Rs.10,000/-. It is, in the above background of the testimony of PW1, the appellant, that his case CRA 2023/03 8 deserves to be considered. 7. Exhibit D2 is stated to be the true photostat copy of the promissory note got executed from the first respondent on 5.11.1998. On production of Exhibit D2 by the first respondent, the appellant has produced the original thereof to contend that there was no attestor to the pro note and the name of DW2 was falsely being inserted in Exhibit D2 as a witness so as to cause him to tender evidence in support of the defence contentions. But, all the same, Exhibit P7, which is the original of Exhibit D2 promissory note shows that it was executed by the first respondent to the appellant at the time of availing of Rs.50,000/- from the appellant. Exhibit P7 was being produced in court on 10.7.2003. As on the date of production of the said pro note, the claim under the said pro note dated 5.11.1998, had got barred. It cannot be believed that the appellant has avoided instituting any suit and has given up the CRA 2023/03 9 claim on the basis of the pro note. Exhibit P7 also shows that the stand taken by the appellant in re-examination that no amount in excess of Rs.10,000/- had even been advanced to the first respondent on any prior occasion is false. The appellant has no case that the amount demanded under Exhibit D1 notice is the amount advanced under Exhibit P7 pro note. Obviously, the two transactions are different. In Exhibit D1 reference is to an advance of Rs.75,000/- availed of by the first respondent, whereas, Exhibit P7 is for an amount of Rs.50,000/- only. The appellant has also no case that it is in discharge of the amounts due either under Exhibit P7 or under Exhibit D1 that Exhibit P1 cheque was issued. These circumstances belie the contention of the appellant that he had not advanced any amount in excess of Rs.10,000/- on any earlier occasion and further it probabilises the contention of the first respondent that the appellant has received promissory notes, CRA 2023/03 10 blank cheques, etc. from him at the time of availing the loan of Rs.25,000/- and that the pro note itself was for double the amount of the loan availed of by him. These aspects are sufficient to rebut the presumption available under Section 139 of the Act in favour of the appellant, who is payee and holder of Exhibit P1 cheque. 8. For the above reasons, the case of the appellant was rightly disbelieved and the first respondent was being rightly found not guilty and was being acquitted by the court below. There is no merit in this appeal. This appeal is, hence, dismissed. 16th January, 2008 (K.P.Balachandran, Judge) tkv