Kamala S vs Vidyadharan M.J. & Anr

Appellant herein was charged with commission of an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') on the premise that a cheque issued by her on 05.09.1997 for a sum of Rs. 1 lakh drawn in favour of the respondent herein, when presented, was dishonoured for the reason "funds insufficient". A legal notice was sent to her, but despite the receipt thereof, she had not repaid the said amount. Before the learned Trial Judge, a defence was raised by the appellant herein that the cheque in question was not drawn in discharge of any debt or security but in fact was drawn for payment of a balance consideration for sale of a property in her favour by the wife of the respondent.

According to the appellant, Smt. Sathyabhama owned a property bearing old Survey No. 1363/3-1-1 measuring an area of 47 cents. She had executed two Sale Deeds, one in favour of Mr. Ramchandran Nair and another in favour of Thankamony conveying to them 20 cents and 27 cents respectively. The Sale Deeds were allegedly executed in favour of the aforementioned persons as a security in lieu of some amount paid in her favour. However, when the Thankamony and Ramchandran Nair demanded the money back from the wife of the respondent, the appellant was approached for purchase of the said property for a consideration of Rs. 5 lakhs. On 05.09.1997, the said Thankmony executed a Deed for Sale in favour of the appellant wherefor she had withdrawn a sum of Rs. 4 lakhs from bank. The said amount was paid to Sathyabhama which in turn was paid to Thankamony and Ramchandran Nair. However, as there was a dispute in regard to the exact area of the property and measurement therefor had not been taken, she had given a cheque to Sathyabhama in the name of her husband as demanded by Sathyabhama on an understanding that the consideration shall be reduced if the area found in the Sale Deed is found short. As upon measurement, the area of the property conveyed in his favour was found to be short by 4 cents, the appellant paid a sum of Rs. 20,000/- to the respondent on 27.11.1997. Allegedly, however the respondent had asked for a sum of Rs. 10,000/- more from the appellant, but a sum of Rs. 5,000/- was only given to him on 18.12.1997 towards full and final settlement thereof and in that view of the matter no further amount was due for her.

A complaint petition was filed thereafter on the allegation that the appellant had borrowed a sum of Rs. 1 lakh from the respondent for purchasing a house and the same was to be repaid within a period of 5 months.

The learned Trial Judge considered the evidence adduced on behalf of the complainant and found the defence of the appellant to be a probable one and having regard to the facts and circumstances of this case, held that the presumption raised under Section 142 of the Act stood discharged and the complainant failed to discharge the onus placed on him stating :

On the said finding, the learned Trial Judge recorded a judgment of acquittal. On an appeal preferred by the respondent herein thereagainst, the High Court, however, reversed the said finding, opining that the appellant had not been able to discharge the burden of proof laid down under Sections 138 and 139 of the Act, which read as under :

The learned Trial Judge as also the High Court had arrived at a finding of fact that the testimony of the appellant (DW-1) was supported by other witnesses examined on her behalf. The High Court, however, proceeded to hold that Ramchandran Pillai and Thankamony had not been examined nor the purported Deeds of Sale executed on their behalf by the wife of the respondent had been examined. Appellant, as noticed hereinbefore, examined herself. The wife of the complainant had been working in a school near her house. Her explanation in regard to the circumstances in which she had drawn a cheque was not controverted. Appellant also examined the scribe of the deed. According to the appellant, two Sale Deeds were executed showing considerations therefor as Rs. 80,000/- and Rs. 20,000/- only at the instance of the appellant although the agreed consideration therefor the same was Rs. 5 lakhs. DW-3, Shashi was also a document writer.

Having considered the entire fact situation obtaining in the present case, we are of the opinion that the defence case cannot said to be wholly improbable one. If it was probable, the findings of the learned Trial Judge could not have been thrown out without meeting the reasonings therefor. The High Court, therefore, in our opinion was not correct in interfering with the said Judgment.

For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.