Criminal Appeal No. 841 of 2002 · Kerala High Court · 2009

M.C. HARI RANI, J.======================CRL.A.NO. 841 OF 2002=======================DATED THIS THE 9TH DAY OF JUNE 2009JUDGMENTThe appellant herein is the complainant in C.C.No.812/1998on the file of the Judicial First Class Magistrate-II, Cherthala. Theoffence alleged against the respondent/accused is under SectionSection 138 of the Negotiable Instruments Act. The learnedMagistrate, after considering the evidence on record, acquittedthe accused on the finding that the accused is not guilty which ischallenged in this appeal.2. Heard the learned counsel for the appellant. Noargument was advanced by the learned counsel appearing for therespondent who is absent.3. The case of the appellant/complainant is as follows:- Therespondent/accused borrowed Rs.50,000/- from the appellant on6-3-1998 and issued Ext.P1 cheque dated 6-5-1998. Thatcheque when presented for encashment was returned with the CRA.841/2002-2-endorsement 'Per, pro, signature and seal required,Fundsinsufficient'. The appellant thereafter issued lawyer notice on22-9-1998, copy of which is produced as Ext.P4 and the samewas received by the accused on 24-9-1998 as revealed from theacknowledgment card, Ext.P6. The accused did not pay theamount nor sent any reply. Thereafter, the appellant filedcomplaint before the Judicial First Class Magistrate Court-II,Cherthala. The offences alleged against the accused are underSection 420 of the Indian Penal Code and Section138 of theNegotiable Instruments Act. The learned Magistrate afterrecording sworn statement of the complainant, taken cognizanceof the case against the accused for the offence under Section 138of the Negotiable Instruments Act. The complainant wasexamined as PW1 and Exts.P1 to P6 were marked on his side.Exts.D1 and D2 were marked during cross examination of PW1on the defence side. Accused was questioned under Section 313of Cr.P.C. 4. It is submitted by the learned counsel appearing for theappellant that the appellant/complainant has proved all theingredients under Section 138 of the Negotiable Instruments Act CRA.841/2002-3-and the finding of the learned Magistrate that the accused is notguilty has to be set aside. It is also submitted by the learnedcounsel that offence under Section 420 of I.P.C. are also provedand that an opportunity may be given to the appellant byremanding the case for fresh disposal in accordance with law.5. I have gone through the evidence on record including theoral testimony of PW1 and the documentary evidence adduced inthis case. During cross examination of PW1, the defence wasdenial of the entire transaction in between the complainant andthe accused. It was contended that the accused had enteredinto an agreement with one Anthukka regarding the supply ofshrimp meat to the tune of Rs.50,000/- and he has handed overa blank cheque to that Anthukka as a security for that amount.Though the accused supplied the entire meat as agreed, thetransaction has not been settled so far. During 313 examinationalso, the same stand was taken by the accused.6. The point to be decided is whether the complainant hasestablished and proved all the ingredients to attract the offenceunder Section 138 of the Negotiable Instruments Act against theaccused. To prove that aspect, the complainant has produced CRA.841/2002-4-Ext.P1 cheque and also the dishonour memo marked as Ext.P2.To attract Section 138 of the Negotiable Instruments Act, thecheque drawn by a person on an account maintained by him andin that account for the discharge of the debt or liability, it wasreturned by the Bank when presented for encashment whichaccording to the complainant in the present case was revealedfrom Ext.P2 dishonour memo for the reason of 'Per, Pro,Signature and seal required, Funds insufficient'. Thus it isevident from Ext.P2 dishonour memo that the cheque was drawnin the joint account and not in the account maintained by theaccused alone and it was returned for the reasons that thesignature of the joint account holder and the seal are requiredand also due to insufficiency of funds. The complainant withoutverifying about the joint account holder has proceeded to issuenotice against the accused by issuing lawyer notice, copy ofwhich is produced as Ext.P4 which was received by the accusedas revealed from Ext.P6. Under Section 139 of the NegotiableInstruments Act, there is a legal presumption that the chequewas issued for discharging an antecedent liability and thatpresumption can be rebutted by the drawer of the cheque. In CRA.841/2002-5-the present case, the cheque was issued not in the account of theaccused alone as revealed from the dishonour memo,Ext.P2.So, such a legal presumption cannot be availed by thecomplainant herein. The burden of proof on the part of thecomplainant has not been discharged by adducing satisfactoryevidence before the lower court. In a prosecution where thecheque was drawn in the joint account of the accused, if bothaccount holders were not arrayed as accused such a rebuttalevidence cannot be adduced by the accused. According to PW1,he has handed over Rs.50,000/- to the accused and has receivedExt.P1 cheque from the accused then and there. It was done inthe presence of some other persons whose names werespecifically mentioned by him during the cross examination inthe witness box. None of these persons were examined on theside of the complainant in spite of denial of the transactionsmade by the accused. The so-called Anthukka is known to thecomplainant and also to the accused. According to thecomplainant, he is working as the clerk of that Anthukka who isdoing business in shrimp meat. The case of the accused that hehas given a blank cheque to Anthukka regarding the supply of CRA.841/2002-6-shrimp meat and in that transaction the bills produced as Exts.D1and D2 were handed over to the complainant as the clerk ofAnthukka. There was transaction between the accused andAnthukka is admitted by PW1. He has issued those receipts tothe accused as clerk of Anthukka is also admitted. All theseevidence on record have been considered by the learnedMagistrate.7. It is then submitted by the learned counsel for theappellant that an opportunity may be given to the complainant toexamine the Bank Manager to prove that the account is operatedby the accused and also to prove that who is the joint accountholder. That submission of the learned counsel cannot beaccepted at present in the light of Ext.P2 memo which wouldreveal that it was not in the account of the accused alone but inthe joint account of another also. The oral evidence of the BankManager will not help the complainant to prove the ingredientsof Section 138 of the Negotiable Instruments Act. Further, 11years time has already over and a remand at this stage is notfair.8. Considering all these aspects, I find that there is no CRA.841/2002-7-ground to interfere with the findings of the court below asprayed for in this appeal.9. In the result, this appeal is dismissed and the judgmentdated 31-5-2002 is confirmed. No costs. M.C. HARI RANIJUDGEks. CRA.841/2002-8- M.C. HARI RANI, J.CRL.A. NO. 841 of 2002JUDGMENT 9-6-2009