Kerala High Court
P.G.Joshy vs Jose Varghese on 19 September, 2019
Equivalent citations: AIRONLINE 2019 KER 428, (2019) 4 CURCC 201, (2019) 4 KER LJ 133, 2019 (4) KLT SN 32 (KER), 2019 ACD 1027 (KER)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941
CRL.A.No.1296 OF 2008
AGAINST THE JUDGMENT DATED 15/05/2008 IN ST 247/2004 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - III, KOCHI
APPELLANT/COMPLAINANT:
P.G.JOSHY
PUTHANAGADY HOUSE, DESOM PO., PURAYAR, ALUVA
BY ADV. SRI.GEORGE SEBASTIAN
RESPONDENTS/ACCUSED AND STATE:
1 JOSE VARGHESE
PROPRIETOR, NICE AGENCIES, VEEKSHANAM ROAD,,
ERNAKULAM, RESIDING AT KANJOOPARAMBIL HOUSE,
H.NO.50/1196-B, CHUTTUPADUKARAYIL, PONE VIA,EDAPPALLY
PO.
2 STATE OF KERALA REP. BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
R1 BY ADV. SRI.ABRAHAM MATHEW VETTOOR
SRI.E.C.BINEESH -G.P
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-08-2019,
THE COURT ON 19-09-2019 PASSED THE FOLLOWING:
Crl.A.No.1296/2008
2
"CR"
R.NARAYANA PISHARADI, J
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Crl.A.No.1296 of 2008
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Dated this the 19th day of September, 2019
JUDGMENT
The appellant is the complainant. Challenge in the appeal is directed against the acquittal of the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').
2. The case of the complainant, as stated in the complaint, is as follows: The accused issued a cheque dated 20.04.2004 for Rs.2,00,000/- in favour of the complainant towards discharge of a legally enforceable debt. The complainant presented the cheque in the bank. The cheque was dishonoured for the reason that payment was stopped. The complainant received intimation regarding the dishonour of the cheque on 09.09.2004. He sent a lawyer notice to the accused on Crl.A.No.1296/2008 3 13.09.2004 demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount.
3. During the trial of the case, the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 was examined and Exts.D1 to D5 documents were marked on the side of the accused.
4. The trial court found that there are suspicious circumstances regarding the execution of the cheque by the accused and issuing it by him to the complainant in discharge of a debt. Therefore, the trial court found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him.
5. Heard learned counsel for the appellant and also the first respondent and perused the records.
6. Ext.P1 is the cheque dated 20.04.2004 for Rs.2,00,000/- alleged to have been executed by the accused and delivered by him to the complainant. The cheque is seen signed by the proprietor of "Nice Agencies". Ext.P2 memorandum dated 08.9.2004 issued from the bank shows that the cheque was Crl.A.No.1296/2008 4 returned unpaid for the reason that payment was stopped by drawer. Ext.P3 memorandum issued from the bank would show that intimation was given to the complainant from his bank regarding the dishonour of the cheque on 09.09.2004. Ext.P4 is the copy of the lawyer notice dated 13.09.2004 sent by the complainant to the accused demanding payment of the amount of the cheque. The complainant had sent the notice to the accused in the residential as well as business address. Ext.P5 postal acknowledgment card shows that the accused had received the notice, which was sent to his residential address, on 14.09.2004. The complaint was filed on 07.10.2004.
7. Ext.D1 is the copy of the reply notice dated 28.09.2004 sent by the accused to the complainant. The plea raised by the accused in Ext.D1 reply notice as well as the statement filed by him under Section 313 Cr.P.C can be summarised as follows: He did not owe any debt or liability to the complainant. He is the proprietor of a furniture shop. He had dealings with the business concern of the complainant by name "M/s.Royal Associates" at Angamaly. The business Crl.A.No.1296/2008 5 transactions with the firm of the complainant were stopped by him by November, 2003. Even thereafter, the complainant and his partner were not prepared to settle the accounts of business on mutual discussions. On 20.01.2004, the complainant and his partner and three other persons trespassed into his shop and forcibly took his cheque book and threatened and compelled him to sign two cheque leaves. Unable to resist them, he signed the cheque leaves. The complainant has misused one of the cheque leaves and filed the complaint. The partner of the complainant has filed another case against him by misusing the other cheque leaf.
8. When examined as PW1, the complainant gave evidence in examination-in-chief (proof affidavit) that the accused issued Ext.P1 cheque dated 20.04.2004 to him for discharging the legally enforceable debt due to him.
9. PW1 has stated on cross-examination that the accused signed Ext.P1 cheque in his presence and gave it to him. In re- examination, he stated that he was not aware whether the accused had already made the entries in the cheque and kept it Crl.A.No.1296/2008 6 with him. But, PW1 reiterated that the accused signed the cheque in his presence.
10. The trial court has found that the signature in Ext.P1 cheque alone belongs to the accused and that the other entries in the cheque are in a different handwriting and that the complainant has no definite case that the cheque was filled up in his presence and it creates doubt as to the execution of the cheque by the accused.
11. A person who signs a cheque and makes it over to the payee remains liable under Section 138 of the Act unless he adduces evidence to rebut the presumption that the cheque was issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque was filled up by any person other than the drawer, if the cheque is duly signed by the drawer. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars in the cheque. This in itself would not invalidate the cheque. The onus would still be on the accused to prove, by adducing evidence, that the cheque was not issued in discharge Crl.A.No.1296/2008 7 of a debt or liability. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract the presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any evidence with regard to the circumstances in which a blank signed cheque was delivered by the accused to the complainant, it may reasonably be presumed that, the cheque was filled in by the complainant being the payee, in the presence of the accused being the drawer, at his request and/or with his acquiescence. The subsequent filling up of an unfilled signed cheque does not amount to an alteration of the cheque (See Bir Singh v. Mukesh Kumar : AIR 2019 SC 2446).
12. In the instant case, the evidence of PW1 that, the accused signed the cheque in his presence and gave it to him, is sufficient to prove execution of the cheque by the accused. Even if it is accepted that it was a blank cheque which was signed and given by the accused to the complainant and that the complainant or some other person has filled up the particulars in Crl.A.No.1296/2008 8 the cheque, in the light of the dictum laid down by the Supreme Court in Bir Singh (supra), the presumption under Section 139 of the Act would be attracted. Then, the burden is upon the accused to rebut the presumption.
13. The plea of the accused is that the complainant and his partner trespassed into his shop and forcibly took two cheque leaves and compelled him to sign the cheque leaves. In other words, the plea of the accused is that he had signed only a blank cheque leaf, that too, under threat and coercion. The burden is upon the accused to prove this plea. The accused relies upon the evidence of DW1 and Exts.D3 and D4 documents to prove his plea.
14. DW1 is said to be a person who was employed in the shop of the accused during the period from January, 2004 to February, 2005. He has given evidence that, one day, during the aforesaid period, the owner of 'Royal Associates' and four other persons came to the shop and they opened the drawer of the table in the shop and took two cheque leaves and forcibly made the accused to sign them. He has stated that the aforesaid Crl.A.No.1296/2008 9 incident took place during the second or third week of January, 2004.
15. The evidence of DW1 in examination-in-chief that the complainant and his partner, by force, got two blank cheque leaves signed from the accused, has not been effectively challenged in the cross-examination. Not even a suggestion was made to DW1 in the cross-examination that no such incident took place. Nothing was brought out in the cross-examination of DW1 to discredit his evidence regarding the said incident.
16. Merely because defence witnesses support the case of the accused, they cannot be held to be untruthful. What is to be considered is the intrinsic worth of the testimony of a witness. Defence witnesses are entitled to equal treatment with those of the prosecution. Quite often, they tell lies, but so do the prosecution witnesses (See Dudh Nath Pandey v. State of U.P. AIR 1981 SC 911). Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, constitute oral evidence in the case. The scrutiny thereof shall be without any predilection or bias. No witness is Crl.A.No.1296/2008 10 entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses. Different yardsticks cannot be prescribed for appreciation of the testimony of different categories of witnesses (See State of U.P v. Babu Ram : AIR 2000 SC 1735).
17. Ext.D3 is the copy of the complaint alleged to have been given by the accused, against the complainant and his partner, to the Circle Inspector, Kalamassery. Ext.D4 is the copy of the complaint given by the accused, against the complainant and his partner, to the Circle Inspector, Ernakulam Central Police Station. The averments in Exts.D3 and D4 complaints are identical. In Exts.D3 and D4 complaints given to the police, the accused had stated that on 20.01.2004, at about 11.30 hours, the complainant and his partner and three other persons trespassed into his shop and opened the drawer of the table in the shop and took two cheque leaves and that they threatened him and got his signature in the cheque leaves.
18. It is true that the accused did not take steps to Crl.A.No.1296/2008 11 summon the originals of Exts.D3 and D4 complaints from the police station. However, PW1 has stated that the complaints given to the police by the accused were returned stating that they were false. Therefore, the complainant cannot dispute the fact that the accused had given Exts.D3 and D4 complaints to the police regarding the incident. PW1 has also admitted that he and the accused had signed at the police station.
19. It is true that regarding the incident that allegedly took place on 20.01.2004, the accused had given Exts.D3 and D4 complaints to the police only on 20.08.2004. However, the delay in making complaint to the police regarding the incident that took place on 20.01.2004, is not sufficient to disbelieve the plea of the accused. In the complaints given by him to the police, it is stated that the complainant and his partner used to blackmail him and threaten him. Moreover, when the evidence of DW1 is accepted as believable, even in the absence of Exts.D3 and D4 complaints, the plea of the accused would stand proved.
20. There is yet another circumstance which indicates that the plea of the accused is very much probable. Before he gave Crl.A.No.1296/2008 12 evidence as PW1, the complainant was very much aware of the plea of the accused. The complainant had received Ext.D1 reply notice sent by the accused. However, there is not even a whisper made by PW1 in examination-in-chief about the plea raised by the accused. Even though the complainant was fully aware of the plea of the accused regarding the execution of the cheque, his evidence in examination-in-chief does not contain even a bare assertion denying the truth of such plea raised by the accused.
21. When a presumption is rebuttable, it only points out the party on whom lies the duty of going forward with evidence on the fact presumed. When that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can show that consideration and debt did not exist. He may also show that, under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. An accused is not expected to prove his defence beyond Crl.A.No.1296/2008 13 reasonable doubt. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. But, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of passing of consideration and existence of debt, would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumption, the accused should bring on record, such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the cheque in question was not supported by consideration or that he had not incurred Crl.A.No.1296/2008 14 any debt or liability, the accused may also rely upon circumstantial evidence. If the circumstances so relied upon are compelling, the burden would shift again on to the complainant. The accused may also rely upon presumptions of fact, as those mentioned in Section 114 of the Evidence Act, to rebut the presumption arising under Section 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial (See Kumar Exports v. Sharma Carpets : AIR 2009 SC 1518).
22. Learned counsel for the appellant would contend that, in the nature of the defence set up by the accused, the best evidence to prove his plea that he had signed the cheque under threat and coercion, would have been his own testimony, but the accused has not chosen to adduce such evidence.
23. The aforesaid contention runs counter to the provisions contained in Section 315 (1) of the Code of Criminal Procedure, Crl.A.No.1296/2008 15 1973. Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. Section 315(1) of the Code provides that any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. However, the proviso to Section 315(1) of the Code states that the accused shall not be called as a witness except on his own request in writing and that his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.
24. It is basic criminal jurisprudence that an accused cannot be compelled to be examined as a witness. No adverse inference can be drawn against the accused merely because he has chosen to abstain from the witness box (See Kashiram v.State of M.P :
AIR 2001 SC 2902). The right of the accused to keep silence finds its expression in the provision contained in Section 315 (1) Crl.A.No.1296/2008 16 of the Code. It is the mandate of the proviso to Section 315(1) of the Code that the failure of the accused to give evidence shall not be subject to any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. It is immaterial that, in a case, the burden is on the accused to prove a fact. No court can comment on the choice made by the accused to abstain from the witness box. Failure or omission of the accused to examine himself as a witness shall not attract any comment from the court. No adverse inference can be made against the accused on his failure to enter the witness box.
25. Of course, learned counsel for the appellant has contended that the evidence of DW1 is not reliable and Exts.D3 and D4 documents cannot be acted upon by the court and that the evidence adduced by the accused does not enable him to rebut the presumption under Section 139 of the Act. Even if this contention is accepted, it has to be found that the accused has been able to rebut the presumption under Section 139 of the Act by relying upon the case set out by the complainant, the Crl.A.No.1296/2008 17 averments or absence of material averments in the complaint and also the evidence adduced by the complainant. Kumar Exports (supra) holds that such a course is open to the accused. The facts and circumstances hereinafter enumerated enable the accused to rebut the presumption under Section 139 of the Act.
26. Firstly, the complaint and the statutory notice do not disclose how or in what manner, the accused incurred any debt or liability to the complainant. There is no averment in the complaint as to the transaction between the complainant and the accused or the nature of the debt or liability incurred by the accused. It is only stated in the complaint that the accused issued the cheque in discharge of a legally enforceable debt. Of course, absence of averments in the complaint or the notice regarding the nature of the debt or liability of the accused, does not affect the maintainability of the complaint or the validity of the notice. But, absence of averments in the complaint as to the details of the transaction between the complainant and the accused, in which the accused incurred the debt or liability, or the nature of the debt or liability of the accused, affects the Crl.A.No.1296/2008 18 credibility of the evidence subsequently adduced by the complainant regarding any such transaction. It affects the credibility of the case set up by the complainant against the accused. In the instant case, the complaint does not disclose that there was a loan transaction between the complainant and the accused. The date on which the accused borrowed the amount from the complainant, the date on which he gave the cheque to the complainant and the date on which the complainant presented the cheque in the bank are also not mentioned in the complaint. Absence of such details in the complaint affects the credibility of the evidence given by the complainant (See Vijay v. Laxman : (2013) 3 SCC 86 and Divakaran v. State of Kerala : 2016 (4) KHC 901).
27. Secondly, even in examination-in-chief, the complainant did not disclose any details regarding the alleged transaction between him and the accused. The complainant did not state even in examination-in-chief that the accused had borrowed money from him. In examination-in-chief, PW1 has only stated that the accused issued the cheque for discharging Crl.A.No.1296/2008 19 the legally enforceable debt due to him. It is only during the cross-examination that the complainant would disclose that the accused had borrowed Rs.2,00,000/- from him on 20.03.2004. Such a case is disclosed by the complainant for the first time only during the cross-examination. PW1 has given evidence that there was no reason for not disclosing the nature and details of the transaction between him and the accused in the complaint.
28. Thirdly, even in examination-in-chief, the complainant has not given any evidence that the accused signed Ext.P1 cheque in his presence and gave it to him. Such a case was put forward by him only during the cross-examination. Absence of any averment by PW1 in examination-in-chief (proof affidavit) regarding the execution of the cheque by the accused has got significance. The complainant was very well aware that plea of the accused was that the cheque was got signed from him under threat and coercion. As noticed earlier, the complainant did not even make a bare statement in examination-in-chief denying the truth of the aforesaid plea raised by the accused.
29. Fourthly, the evidence of the complainant reveals that Crl.A.No.1296/2008 20 an amount of Rs.20,000/- was due from the accused in the business transaction. The plea of the complainant that, inspite of the fact that the accused owed him an amount of Rs.20,000/-, he further advanced a personal loan of Rs.2,00,000/- to the accused, is not at all credible. It is to be noted that, as per the evidence given by the complainant, he had obtained the amount from his wife, parents and friends for lending it to the accused. It cannot be believed that the complainant collected an amount of Rs.2,00,000/- from his wife, parents and friends and gave it to the accused, that too, without obtaining any document from the accused as security for such amount, when the accused already owed him Rs.20,000/- in the business transaction.
30. The aforesaid circumstances enable the accused to persuade the court to believe that he had not incurred any debt or liability to the complainant and that he had not issued the cheque to the complainant in discharge of any debt or liability. Thus, even if it is found that the specific plea set up by the accused as to the possession of his cheque by the complainant is not proved by him, he could succeed in rebutting the Crl.A.No.1296/2008 21 presumption under Section 139 of the Act by relying upon the facts and circumstances of the case set up by the complainant against him and also the facts and circumstances brought out in the evidence of the complainant. Then, in the absence of any reliable evidence adduced by the complainant to prove the transaction alleged by him, he has failed to prove that the accused committed an offence punishable under Section 138 of the Act.
31. In the aforesaid circumstances, the judgment of the trial court acquitting the accused, does not warrant any interference by this Court in appeal. The appeal is liable to be dismissed.
In the result, the appeal is dismissed.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr/18/09/2019 True Copy PS to Judge