Criminal Appeal No. 1700 of 2003 · Kerala High Court · 2007

V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *Crl. Appeal No. 1700 of 2003* * * * * * * * * * * * * * * * * * Dated, this the 5th day of February 2007JUDGMENTThe accused in C.C. No. 701 of 2000 on the file of J.F.C.M. -II, Aluva for an offence punishable under Sec. 138 of the NegotiableInstruments Act, 1881 (hereinafter referred to as “The Act” for short)challenges the conviction entered and the sentence passed against himby the said court for the said offence.2.The above case arose out of a private complaint filed bythe first respondent herein to the following effect:-On 20-11-2989 the accused borrowed a sum of Rs. 60,000/- fromthe complainant agreeing to re-pay the said amount within two months.On repeated demands for the amount the accused issued Ext.P1 chequedated 10-4-2000 drawn on the Kalamassery Branch of the Federal Bank.When the cheque was presented for collection the same was dishonouredfor want of sufficient funds in the account of the accused A statutorynotice was issued to the accused calling upon him to pay the amount Crl. Appeal No. 1700 of 2003-:2:-due under the cheque. Even though the accused received thenotice on 15-5-2000, he neither paid the amount nor sent a reply. Theaccused has thereby committed an offence punishable under Sec. 138 ofthe Negotiable Instruments Act.3.On the accused pleading not guilty to the substance ofaccusation read over and explained to him, the complainant wascalled upon to adduce evidence in support of his case. The complainantexamined himself as P.W.1 and got marked 7 documents as Exts.P1 toP7.4.After the close of the prosecution evidence the accused wasquestioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminatingcircumstances appearing against him in the evidence for the prosecution.He denied those circumstances and maintained his innocence. Hestated that Ext.P1 cheque was issued as a security when he auctionedthe chitty conducted by the complainant, that the entire chitty instalmentshad been repaid by him and that the complainant evaded all earnestattempts made by the accused to get back the cheque. To substantiate Crl. Appeal No. 1700 of 2003-:3:-the said defence the accused examined himself as D.W.1 and he alsoexamined an independent witness as D.W.2.5. The learned magistrate, after trial, as per judgment dated17-2-2003 acquitted the first accused after holding that Ext.P1 chequewas not issued in discharge of a debt or liability but was issued byway of security. It is the said judgment which is assailed in this appealby the complainant after obtaining leave to file the same.6.The only point which arises for consideration is as to whetherthe appellant/complainant has succeeded in proving that therespondent/accused has committed an offence punishable under Section 138of the Act. THE POINT:7.I heard the learned counsel for the appellant and the learnedcounsel for the respondent.8.Assailing the judgment under appeal, the appellant's counselmade the following submissions before me :-The complainant examined as P{.W.1 has admitted that he was not Crl. Appeal No. 1700 of 2003-:4:-in the habit of insisting on security while any chitty subscriber auctionedthe chitty. If the accused had repaid all the instalments, then as areasonable and prudent man he would have taken the cheque back fromthe complainant. The explanation offered by the accused for not takingback the cheque is not at all convincing. According to the accusedexamined as D.W.1, P.W.1 the complainant told him that the cheque wasmisplaced when the office was shifted. But D.W.2 would say that P.W.1told the accused that the cheque was with his legal adviser. D.W.2was not present when accused went to P.W.1 to collect the amount.It is unlikely that the accused would have subsequently handed over ablank cheque to P.W.1 as contended by him. If as a matter of factExt.P1 cheque was issued as a security for the due payment of theinstalments, the collection of the amount and the handing over of thesecurity would have been a simultaneous transaction. DWs 1 and 2have not rebutted the presumption under Sec. 139 of the Act. D.W.1has been giving different stories on all the three occasions when heallegedly approached P.W.1 for return of the cheque. D.W.2 does not Crl. Appeal No. 1700 of 2003-:5:-corroborate D.W.1.9.I am afraid that I cannot agree with the above submissions.Even though P.W.1 would say from the witness box that it was apersonal loan, in the complaint he has described himself as a partnerof the kuri firm. Even P.W.1 confessed during his cross-examination thatthe accused was having transaction with the firm only. P.W.1 alsoadmitted that some subscribers used to bring their cheque books andissued cheques while auctioning the chitty. The evidence on recordis to the effect that accused handed over the cheque at the time ofauctioning the chitty. Thereafter, he remitted the entire amount.When the accused demanded the cheque back P.W.1 told him that thecheque was misplaced in his office. The accused has also crediblystated that on receipt of the statutory notice when he met P.W.1 thelatter told him that it was sent by mistake and that no action wouldbe taken pursuant to it. P.W. 1 has also admitted that the signature inExt.P1 cheque is of a particular ink and the other writings including thedate therein are in different ink. This also probabilises the defence Crl. Appeal No. 1700 of 2003-:6:-version that at the time of auctioning the chitty, P.W.1 took from theaccused a blank cheque by way of security. Apart from suggesting toP.W.1 the above defence, the accused stepped into the witness box andexamined himself as D.W.1 to substantiate his version. He also examinedD.W.2 who has given corroboration to the case of the accused. Thetrial Magistrate who had the unique advantage of seeing the witnessesand assessing their credibility was not inclined to accept the version ofthe complainant examined as P.W.1. The learned Magistrate fully believedthe testimony of DWs 1 and 2. In the absence of any infirmity inthe appreciation of evidence by the trial court this court sitting in appealwill be loath to take a different view. (Vide.State of Kerala v. Cheriyan -1997 (2) KLT 196; Shivaji v. State of Maharashtra - AIR 1973 SC 2622and Madhusudan Das v. Narayani Bai - AIR 1983 S.C. 113).). Theaccused has thus rebutted the presumption under Sec. 139 of theAct. The finding recorded by the trial court that the prosecution hasnot succeeded in proving beyond reasonable doubt that the he chequewas issued by the accused to the complainant in discharge of an amount Crl. Appeal No. 1700 of 2003-:7:-legally due to him is, on the evidence, perfectly justified. I fullyendorse the conclusion reached by the Magistrate.The result of the forgoing discussion is that this appeal iswithout merit and is accordingly dismissed confirming the judgment passedby the trial court acquitting the accused of the offence punishable underSec. 138 of the Act.V. RAMKUMAR, (JUDGE)ani. Crl. Appeal No. 1700 of 2003-:8:- V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *Crl. Appeal No. 1700 of 2003* * * * * * * * * * * * * * * * * * Dated, this the day of 2006JUDGMENT