Criminal Appeal No. 171 of 2003 · Kerala High Court · 2011

K.HEMA, J.-----------------------------------------------Criminal Appeal No.171 of 2003-----------------------------------------------Dated 8th March, 2011.J U D G M E N TThis appeal is filed against the order of acquittalpassed under Section 255(1) of the Code of Criminal Procedure('the Code' for short).2. The appellant is the complainant. He filed acomplaint against first respondent alleging offence underSection 138 of the Negotiable Instruments Act (for short, 'theAct'). As per the allegations in the complaint, the accusedborrowed Rs.2,00,000/- from the complainant on 30.9.2000.The accused demanded the said sum from the complainant forthe purpose of repaying a debt which he had incurred toanother person. At the time of borrowing the money, accusedpromised to pay back the same to the complainant by sellinghis mother's property and house within a month.3. On 4.11.2000, the complainant demanded theaccused to repay the amount. Instead of making repayment incash, the accused issued cheque Ext.P1 drawn on his accountfor Rs.2,00,000/-. The cheque was presented to the bank and itwas returned stating “funds insufficient”. The complainant Crl.Appeal No.171/032issued a lawyer notice calling upon him to repay the amountwithin 15 days. The accused received the notice, but he failedto repay the amount. He sent a reply notice making untruefacts and false averments. After complying with the legalformalities, the complainant filed complaint alleging offenceunder Section 138 of the Act. 4. To prove the prosecution case, complainanthimself examined as PW1 and marked Exts.P1 to P10. Theaccused examined DW1 on his side. The accused put forward acase that this is a false case foisted at the instance of oneRukhiya, the aunt of the complainant to whom he had issued ablank cheque as security while getting Rs.10,000/- from her.He had issued this blank cheque to Rukhiya as insisted by her,but misusing those cheques the other sons and sisters ofRukhiya filed different cases before the same court as S.T.1/01,S.T.2/01, S.T.7/01 and this case. This case is foisted againstaccused by misusing the blank cheque which was handed overto Rukhiya. The accused has not issued any cheque to thecomplainant and no amount was due from the accused to the Crl.Appeal No.171/033complainant and hence he is not liable for offence underSection 138 of the Act. 5. The trial court analysed the evidence adduced onboth sides and held thus : “It seems that the entire family of PW1 and Rukhiya kepta huge amount ready to lend to the accused. Strangeindeed. It is also in evidence that the amount shown inall those cheques is also Rs.2,000/- each. That alsowould only probabilise the case put forward by theaccused and would make the case put forward by thecomplainant further suspicious.”6. The trial court also found that there is differencein the admitted portion of Ext.P1 and the disputed portion. It isheld : “When we compare that portion with the remainingwritings and the entires in Ext.P1, per se, it can be seenthat the disputed writings are with different pen and inkand in different hand writing ..... Difference in ink anddifference in writing in Ext.P1 will only lend support tothe contention of the accused and not of thecomplainant”. 7. The trial court also found that complainant has todischarge the burden to prove that he advanced Rs.2,00,000/- Crl.Appeal No.171/034to the accused and to discharge that liability the accused issueda cheque to him, as alleged. It was also held that the case putforward by the complainant does not appear to be convincing,on the basis of the above findings.8. Heard both sides. Perused the records. Thecomplainant, as PW1 gave evidence consistent with theaverments made in the complaint. He specifically deposed thatExt.P1 cheque was written in the handwriting of the accused inhis presence and also signed in his presence. He also statedthat there was some correction in the name written on thecheque Ext.P1 and there also, accused had signed. A perusal ofExt.P1 shows that there is a correction and a signature in thename of the payee in Ext.P1 and it is consistent with what isstated by PW1. PW1 categorically deposed that the chequeExt.P1 was written and signed in his presence. So many detailswere stated by him in the evidence.9. To corroborate the evidence of PW1, he alsomade a request to send Ext.P1 for expert opinion. He filedC.M.P.6671 of 2001 under Section 45 of the Indian Evidence Crl.Appeal No.171/035Act. Since the signature and the handwriting are denied byaccused, the complainant wanted to get Ext.P1 cheque sent tothe handwriting expert to ascertain whether the handwritingand the signature were that of the accused himself. He alsofiled a petition C.M.P.27 of 2002 to direct the accused to givespecimen signature and specimen handwriting to compare thesame with the disputed one under Section 73 of the IndianEvidence Act. Specimen signature was also obtained as per adirection from the court. Though the prayer for reference to theexpert was rejected, the court ordered that the specimensignature of the accused would be called for from the bank.10. PW1 was cross examined at length. But,nothing was brought out from his evidence to show that theversion given by PW1 regarding the handwriting and signatureof the accused in Ext.P1 is false. The petition filed by thepetitioner to get the signature and handwriting examined bythe expert was opposed by the defence. On a comparison ofthe specimen signature and handwriting with the handwritingand signature in Ext.P1 by this court, those appear to be of the Crl.Appeal No.171/036same person. The court below however did not state in theorder whether the handwriting in the specimen and that inExt.P1 are different. He has not compared the specimenhandwriting with Ext.P1.11. But the case of accused is that one of the blankcheques issued to one Rukhiya was misused by PW1. Hisdefinite case is that blank cheques were issued to the saidRukhiya who is the aunt of PW1 and one such cheque wasmisused by PW1 to file the complaint. Nothing brought outfrom the evidence of PW1 to show that Ext.P1 at the time ofhanding over was a blank cheque or that it was the chequehanded over to Rukhiya. A mere statement made whilequestioned under Section 313 Cr.P.C. is not sufficient to throwany doubt in the veracity of the evidence given by PW1. Unlessthe evidence is inherently improbable or it is discredited bycross examination or it is rendered unbelievable on the basis ofany facts and circumstances of the case, which emerge fromthe evidence, the evidence of a witness cannot be discarded.12. On a mere defence taken up by the accused that Crl.Appeal No.171/037the cheques produced in the case was blank cheque at the timeof handing over the same to another person, the court shall notview the case of the complainant with any suspicion. The samesituation will arise vice versa also. When the accused putforward a case that the cheque which was produced in the casewas blank cheque when it was handed over it contained onlysignature, the court shall not view such defence with suspicion.Both cases required and deserve consideration by the court andthe court has to weigh the evidence on the scale of probabilitiesand decide whether the case set up by the prosecution or thedefence has been proved in accordance with Section 3 of theEvidence Act.13. The court shall not look at the case set up by theprosecution or the defence with any pre-conceived notion,prejudice or suspicion. Both deserve unbiased, impartialscrutiny and a decision can be rendered only based on theevidence available on record. It appears from the order underchallenge that the court below acted on surmises andconjuncters. The trial court viewed the case of the complainant Crl.Appeal No.171/038with suspicion which was totally unwarranted on the facts andcircumstances of the case. The court was of the opinion that itwas strange that the entire family of PW1 and Rukhiya wouldkeep huge amount ready to be lent to the accused. Thisopinion is expressed not on the basis of evidence.14. It has come out in evidence that other cases arefiled by the relatives of PW1 who are also related to Rukhiyaagainst the accused in this case for producing cheques, handingover amounts of Rs.2,00,000/- each. The mere existence ofsuch cases is not sufficient to hold that such huge amount maynot be given or kept by the family members of PW1, especiallysince none of his family members could be examined in thiscase. Apart from this, nothing has been brought out from theevidence of PW1 to show that such a conduct is a strange one.The court can express its opinion only on the basis of evidenceavailable on record. But, nothing is brought out from theevidence of PW1 to disclose any strange conduct of therelatives of PW1. Learned counsel appearing for the appellantpointed out that all the other cases ended in conviction and Crl.Appeal No.171/039those were confirmed in revisions filed before this Court.15. Apart from all these, the evidence adduced onbehalf of the accused person would lead to a conclusion thatthe cheque produced in this case was blank cheque at the timewhen it was handed over by the drawer to another. PW1 wasexamined to prove that Ext.P1 was handed over to Rukhiya andit was only a blank cheque at the time when it was handedover. But such a conclusion cannot be made on the basis of theevidence of DW1. DW1 did not depose before the court thatExt.P1 was a blank cheque signed by the accused and handedover to Rukhiya. Ext.P1 was not shown to DW1, while he was inthe box. DW1 had no case when examined in court thataccused had given any blank cheque to Rukhiya.16. DW1 stated that those cheques were given assecurity, but those cheques were all signed and written in thepresence of DW1. A pointed question was put to him whetherthose cheques were written and signed in the presence of PW1to which, the witness answered in the affirmative. Therefore,the case set up by the accused that blank cheques were issued Crl.Appeal No.171/0310is not disclosed by the evidence of DW1 himself. It is only acase put forward by the accused at the time of questioningunder Section 313 which does not gain any support from theevidence. On the other hand, the evidence adduced byaccused negatives the contention taken up by accusedregarding issuance of blank cheque and that Ext.P1 is one suchblank cheque which was filled by the complainant.17. In the light of the cogent evidence given by PW1,which is not discredited in cross examination, the finding of thecourt based on a perusal of the writing in Ext.P1 that “thedifference in ink and difference in writing in Ext.P1 only lendssupport to the contention of the accused and not of thecomplainant” is not sustainable. Except a statement given bythe accused at the time of questioning under Section 313Cr.P.C. that blank cheque was issued, such version is notprobabilised by the evidence either adduced or through DW1 oron the basis of any material brought out from the evidence ofPW1 or any circumstance in this case.18. The trial court has proceeded as if the cheque is Crl.Appeal No.171/0311blank cheque without any basis or evidence on record. Theapproach in appreciating the evidence of PW1 and the case setup by the prosecution is not legally acceptable. Thecomplainant having proved that Ext.P1 is a cheque drawn bythe accused which contains the handwriting and signature ofthe accused, it can be presumed that it was drawn forconsideration. The case of the complainant is that the saidcheque is drawn for the discharge of debt or liability which theaccused incurred in favour of the complainant. He also gaveevidence that he is entitled to receive and recover the amountdue as per Ext.P1 from the drawer, since he has givenRs.2,00,000/- to him.19. The version given by PW1 that he handed overRs.2 lakhs to the accused also is not discredited in crossexamination. In the above circumstances, the presumptionunder Section 139 of the Code can also be drawn in favour ofthe complainant. It can be presumed that the complainant whois the holder of the cheque received the cheque of the naturestated in Section 138 for discharge of a debt or liability. Crl.Appeal No.171/0312Having proved Ext.P1 as a cheque written and signed by theaccused and it shows that it is drawn for the purpose of payingRs.2 lakhs to the complainant, it can be presumed that thecomplainant had received the cheque from the accused for thepurpose of discharging debt or liability and not for any otherpurpose. This presumption stands unrebutted.20. There is nothing in the evidence of DW1 toconnect the transaction alleged against him with thetransaction which is put forward by the prosecution case. Infact, it has been brought out from the evidence of DW1 that hedid not know whether PW1 and the accused had any moneydealings between each other and he also pleaded ignoranceand he did not know the details of the cheque which washanded over to Rukhiya by the accused. He did not know thename of the bank and cannot remember the cheque numberetc. He also gave contradictory statement regarding thedirection of the face of the house of Rukhia when he wasexamined in court in this case and in other case. He deposedthat the house was facing west at the time of his examination in Crl.Appeal No.171/0313this case whereas in the other case, as per Ext.P1, he statedthat house was facing to north. The definite case of DW1 is thathe had gone to the house of Rukhiya in connection withtransaction and issuance of cheque. The evidence of DW1 istotally insufficient to probabilise the case set up by the defence.21. In the above circumstances, I hold that theprosecution has succeeded in proving that the accusedcommitted an offence under Section 138 of the Act. Theaccused/first respondent is therefore found guilty of theoffence under Section 138 of the Act and he is sentenced toundergo simple imprisonment for three months and also to paycompensation of Rs.2 lakhs to PW1. In default of payment orrecovery of such amount in accordance with law, he shall alsoundergo imprisonment for three months in civil prison.The appeal is allowed. K.HEMA, JUDGE.Krs.