Criminal Appeal No. 803 of 2002 · Kerala High Court · 2009

M.C.HARI RANI, J. ----------------------------------------------------- CRL.A.No.803 OF 2002----------------------------------------------------- DATED THIS THE 2ND DAY OF JUNE, 2009J U D G M E N T Appellant is the complainant in C.C.No.710/98 on the file ofthe Court of J.F.C.M., Payyannur, which was filed under Section138 of Negotiable Instruments Act. The trial court as perjudgment dated 18.3.2002 has acquitted the accused undersection 255(1) of Cr.P.C., which is challenged in this appeal.2.The case of the complainant put forward in thecomplaint is that on 3.6.1998, the accused had borrowed anamount of Rs.1,50,000/- from the complainant with the promiseto repay that amount within one month. The amount was notrepaid, as agreed by the accused. He approached the accused on3.7.1998 and demanded to repay the amount. Instead ofrepaying the amount, the accused issued Exhibit P1 cheque on3.7.1998 drawn on Payyannur Co-operative Town Bank Limited,Main Branch, Payyannur, which when presented for collection wasdishonoured on 6.7.1998 with a memo for the reason “exceedsarrangement”, ie; due to insufficiency of funds in the account of CRL.A.No.803/02 -2-the accused. After getting that intimation, the complainant issuedlawyer notice on 20.7.1998 which was received by the accused on22.7.1998, as revealed from Exhibit P4 copy of the notice and ExhibitP4(b) acknowledgement card. The accused neither send any reply norrepaid the amount and the complaint was filed by the complainantbefore the lower court.3.On the side of the complainant/appellant, he was examinedas PW1 and Exhibits P1 to P4(b) were marked. No defence evidenceeither oral or documentary has been adduced. After considering theevidence on record, both oral and documentary, the lower courtacquitted the accused under section 255(1) of Cr.P.C., which ischallenged in this appeal.4.Though notice was served in person to the first respondentherein, the accused, he did not appear and there was norepresentation on his behalf.5.Heard the learned counsel appearing for thecomplainant/appellant. Heard the learned Public Prosecutor appearingfor the 2nd respondent, State of Kerala.6.The learned counsel for the appellant has submitted that thelower court has found in favour of the appellant that all the ingredients CRL.A.No.803/02 -3-to file a complaint for an offence under Section 138 of NegotiableInstruments Act are clearly complied with by the complainant. It isadmitted by the accused that the cheque, Exhibit P1 belongs to himwhich contains his signature. Then, it is for the the accused to rebutthe presumption available to the complainant under Sections 118 and139 of the Negotiable Instruments Act. That also has been found infavour of the appellant/complainant. But, the lower court haserroneously acquitted the accused with the finding that it is not provedthat the accused has issued Exhibit P1 cheque to discharge a debt ofRs.1,50,000/- and that the complainant had not impressed that he hadmobilised such a huge amount of Rs.1,50,000/- on 3.6.1998 to paythat amount on 3.6.1998 on the mere asking of a loan by the accused.The learned counsel vehemently argued that the execution of ExhibitP1 cheque has been admitted by the accused and that the accusedthough received the lawyer notice issued by the complainant on20.7.1998, no reply has been sent by him. Thus, the accused has notavailed the earlier opportunity to deny the liability due under thecheque, it is submitted. 7. The appellant/complainant has been examined before thelower court as PW1. In the complaint, the complainant has put CRL.A.No.803/02 -4-forward a case that there was transaction between him and theaccused on 3.6.1998 and that Rs.1,50,000/- has been borrowed bythe accused from the complainant on that day and the accusedpromised to repay that amount within one month. According to thecomplainant, that amount of Rs.1,50,000/- was readily available withhim on that day, which was handed over by him to the accused, evenwithout knowing the financial capacity of the accused to repay thesame. According to the complainant/PW1, there was an earliertransaction between them about eight years back and Rs.25,000/- wasborrowed by the accused and a cheque was handed over to him, whichwas returned to the accused when that amount was repaid to him.The defence of the accused as revealed from the cross-examination ofPW1 is that an amount of Rs.5,000/- was borrowed by the accusedfrom the complainant eight years back and that amount was repaid,but the cheque was not returned by the complainant which wasmanipulated by the complainant and the present complaint was filedagainst him. The accused has denied the transaction on 3.6.1998 asput forward by the complainant. In the complaint, it was specificallystated that amount was borrowed on 3.6.1998 and the cheque wasissued subsequently after one month, ie; 3.7.1998. But, while in the CRL.A.No.803/02 -5-witness box, PW1 has stated that the entire transaction between themwas on 3.6.1998 itself. Thus, PW1 has denied his own case in thecomplaint regarding the issuance of the cheque on 3.7.1998. Thatmaterial contradiction has been considered by the lower court and hasdisbelieved the case of the complainant.8.It is true that the accused has admitted that Exhibit P1cheque belongs to him and it contains his signature. That does notmean that the entire transaction put forward by the complainant andthe execution of the cheque as such has been admitted by theaccused. The suggestions put to PW1 in cross-examination is to theeffect that Rs.5,000/- was borrowed by the accused from thecomplainant about three years back. At that time, the complainanthad obtained two blank cheques. Though the amount was repaid, thecheque was not returned, which was misused. All those suggestionswere denied by PW1. So the point to be decided is regarding thesource of Rs.1,50,000/- on 3.6.1998 with PW1 so as to handover thesame to the accused on that day. To substantiate this, I have got theoral evidence of PW1 only. According to PW1, Rs.80,000/- waswithdrawn by him from his account in the bank and Rs.40,000/- wasborrowed from his friend Haroon. This can be proved by producing the CRL.A.No.803/02 -6-passbook and by examining Haroon, whose address is known to him asadmitted. But, this was not done. Passbook was not produced andHaroon has not been examined for the reasons best known to PW1.So, also the case of the complainant that he has received Rs.30,000/-as commission towards brokerage for the purchase of a property byone Sankaran from One Narayanan Master whose address is known tothe complainant were also not examined. Even according to PW1,Sankaran is available in his locality and Narayanan Master is atBangalore. So, the denial of the accused with regard to thattransaction between them and the source of that amount, etc. can benegatived by examining those witnesses and by producing thepassbook or by examining the bank officials. No such attempt hasbeen made by the complainant which has been elaborately dealt withby the lower court. Accordingly, the lower court has found that thecase of the complainant as such cannot be believed and thecircumstances of non-examination and non-production of thedocuments are enough for rebutting the presumption available infavour of the complainant under Sections 118 and 139 of theNegotiable Instruments Act. The sole reason that no reply has beensent by the accused to the lawyer notice issued by the complainant CRL.A.No.803/02 -7-cannot be accepted as a ground to draw the presumption undersections 118 and 139 of the N.I.Act in favour of the complainant ascorrectly found by the lower court. In these circumstances, I find thatno interference is required by this Court with regard to the finding ofthe lower court by which the accused was found not guilty andacquitted under Section 255(1) of Cr.P.C. 9.In the result, this appeal is dismissed.M.C.HARI RANI, JUDGE.dsn