Kerala High Court
C. Bhaskaran Nair vs B. Mohanan on 2 June, 2009
Equivalent citations: AIR 2010 (NOC) 877 (KER.), 2010 CRI. L. J. (NOC) 1207 (KER.)
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 885 of 2001()
1. C. BHASKARAN NAIR
... Petitioner
Vs
1. B. MOHANAN
... Respondent
For Petitioner :SRI.PHILIP M.VARUGHESE
For Respondent :SRI.KALEESWARAM RAJ
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :02/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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CRL.A.NO.885 OF 2001 ()
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Dated this the 2nd day of June, 2009
J U D G M E N T
Complainant is the appellant. His complaint against the 1st respondent, hereinafter referred to as the 'accused', for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', after trial, ended in acquittal of the accused. Aggrieved by the judgment of acquittal, questioning its legality and correctness, he has preferred this appeal.
2. The case of the complainant is that the accused issued Ext.P1 cheque for a sum of Rs.3,50,000/- towards discharge of a loan for the above sum, availed one month earlier, promising its encashment on presentation before the bank in due course. The cheque presented, was however, dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating the dishonour of the cheque and demanding the sum covered by the instrument was responded 2 with Ext.P6 reply notice, raising untenable contentions. The complainant thereupon launched prosecution against the accused for the offence punishable under Section 138 of the N.I.Act.
3. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined himself as PW1 and got marked Exts.P1 to P6 to prove his case. The accused in his reply notice, Ext.P6, had contended that he had no transaction with the complainant but only with his son to whom he had given two cheques as security. He had further contended in the reply that one of the two cheques had been misused by the complainant in collusion with his son to set up a false case against him. During the cross examination of the complainant as PW1, the version presented in the reply notice was set up as a defence of the accused. When questioned under Section 313 of the Cr.P.C., he maintained his innocence. No defence evidence was adduced.
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4. The learned Magistrate, after appreciating the materials produced, found the case of the complainant that he had a loan transaction with the accused and Ext.P1 cheque was issued towards discharge of the liability under that loan was not established, and to the contrary, the defence version that Ext.P1 cheque had been given to the son of the complainant as security in respect of a loan transaction with him was more probable. In that view of the matter, the accused was found not guilty and acquitted of the indictment.
5. I heard the counsel of both sides. The learned counsel for the complainant assailed the judgment of acquittal submitting that the learned Magistrate had misappreciated the facts and evidence tendered in the case. The accused had disputed the liability under Ext.P1 cheque, according to the counsel, set up a defence that he had no loan transaction with the complainant and the cheque had been issued as a security in respect of a loan transaction with the son of the complainant. The counsel further submitted that in Ext.P6 reply notice, the accused had also disputed that on the date of 4 loan transaction alleged by the complainant, that is, 10.6.1997, he was on a different place. It is the submission of the learned counsel that there was no denial of execution of the Ext.P1 cheque by the accused but only a dispute as to having had a loan transaction with the complainant and issue of Ext.P1 cheque to him towards discharge of a debt or liability. When execution of Ext.P1 cheque was not denied, but only the liability thereunder, and the cheque had been dishonoured due to insufficiency of funds in the account of the accused, the complainant, the holder of the cheque is entitled to bank upon the presumption under Section 139 of the N.I.Act unless the contrary is proved that he had received the cheque towards discharge in whole or in part of any debt or other liability of the drawer of that instrument. Complainant, who was examined as PW1 had sworn to his case set up in that complaint with the accused other than raising a false defence disputing the loan transaction with the son let in counter evidence to rebut the presumption under Section 139 of the N.I.Act, submits the counsel. The learned Magistrate disbelieved the case of the complainant, according to the 5 counsel, for the reason that he had not established by convincing evidence the loan transaction, which was disputed, relating to the issue of Ext.P1 cheque. No burden was cast upon the complainant in the given facts and circumstances of the case to prove the loan transaction, where the execution of the cheque had been admitted by the accused that the dispute that the instrument had been given as security to another. It is for the accused to rebut the presumption available under the Statute in favour of the holder of the instrument by leading cogent and convincing evidence substantiating the defence canvassed that the cheque had been issued as security, as contended, to another and not handed over to the complainant, submits the counsel. Inviting my attention to the answers given by the accused when questioned under Section 313 of Cr.P.C., when his attention was there to the incriminating circumstances appearing in the prosecution evidence, the learned counsel submitted that other than making a bald statement that the circumstances presented by the complainant in his evidence are not correct, and that he is innocent. He had not even reiterated the defence set up in his 6 reply notice and also when the complainant was subjected to cross examination, the accused also did not mount the box to swear in support of his defence and no materials what so ever has been produced in support of the defence canvassed denying the transaction with the complainant, submits the counsel. The burden is on the accused to rebut the presumption under Section 139 of the N.I.Act, which was not done, and further, according to the counsel in view of the specific plea put up by him the cheque had been issued to the son of the complainant in support of a different transaction as security, the burden was on him under Section 105 of the Evidence Act to show atleast the defence canvassed by him was probable, the accused had failed to discharge that burden caused upon him, is the submission of the counsel. The materials produced by the complainant that the presumption available under the Statute in his favour in the given facts of the case, according to the counsel, is more than sufficient to establish the guilt of the accused for the offences imputed, and so much so, it is urged that in reversal of the judgment of acquittal, the accused be convicted of the offence under 7 Section 138 of the N.I.Act.
S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009