Kerala High Court
S.Ramachandran vs B.Bhanuvikraman Nair on 24 October, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939
CRL.A.No. 258 of 2006
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AGAINST THE JUDGMENT IN ST 290/2002 of JUDICIAL MAGISTRATE OF THE FIRST
CLASS-II,THIRUVANANTHAPURAM DATED 24-10-2005
APPELLANT/COMPLAINANT:
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S.RAMACHANDRAN
T.C.41/1172, LEKHA BHAVAN, MANACAUD, THIRUVANANTHAPURAM.
BY ADV. SRI.M.SREEKUMAR
RESPONDENTS: ACCUSED AND STATE:
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1. B.BHANUVIKRAMAN NAIR
RESIDING AT "MANU'S & SANU'S", NO.NRA-III, NETHAJI ROAD,
VATTIYOORKAVU, THIRUVANANTHAPURAM WORKING AS TYPIST,
DISTRICT OFFICE, FOOD CORPORATION OF INDIA, KOZHIKODE.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY P.P.SMT.V.SREEJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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K.ABRAHAM MATHEW J.
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Crl.A.No.258 of 2006
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Dated this the 4th day of October, 2017
JUDGMENT
The appellant and the first respondent were the complainant and the accused respectively in ST No.290/2002 on the file of the Judicial Magistrate of the First Class-II, Thiruvananthapuram. The latter was prosecuted for the offence under Section 138 of the Negotiable Instruments Act. The appellant's case was that on 5.7.2000 the first respondent borrowed from him Rs.1,70,000/- and to discharge the liability he issued Ext P1 cheque dated 5.12.2000; on presentation it was returned dishonoured for want of sufficient fund in the account and in spite of demand by notice he failed to pay the amount. The first respondent was an employee of the Food Corporation of India. His defence was that he and two colleagues, one of whom was one Vilas Kumar, borrowed certain amounts from a society and they were sureties for one another; as security for the loan each of them issued a signed blank cheque. Thereafter, the first respondent was transferred to another place. He paid back the loan. The creditor society handed over to Vilas Kumar the signed blank cheque the first respondent had given as security. A dispute arose between the appellant and Vilas Kumar and the former committed theft of the first respondent's signed blank cheque and this is the one relied on by the appellant in this case. For various reasons the trial court acquitted the first respondent. This is challenged.
2. Heard the learned counsel for the appellant and the first respondent. Crl.A.No.258 of 2006 2
3. In a complaint filed under Section 142 of the Negotiable Instruments Act it is essential for the complainant to prove that the accused executed the cheque relied on by him. Learned counsel for the appellant submits that the admission of the first respondent that Ext P1 cheque bears his signature is sufficient to prove its execution. It is well settled that an admission of a party should be read as a whole. What the first respondent admitted is not execution of the cheque, but signing a blank cheque leaf. There is no admission that the first respondent received any amount from the appellant or that the first respondent issued the cheque to the appellant. So the appellant was bound to adduce evidence to prove execution of the cheque.
4. In the proof affidavit filed in lieu of the examination-in-chief of the appellant (PW1) there is not even a whisper about execution of the cheque by the first respondent. But in the cross-examination he stated that the first respondent entered the particulars in the cheque and signed it before him. Later he disclosed that the first respondent only signed the cheque before him. In other words, the cheque was a written up cheque when it was allegedly brought to the appellant. This is not natural. If PW1 had not been corss- examined there would have been no evidence even to prove that the cheque bears the signature of the first respondent. A party should not leave to the cross-examiner proving a fact by suggestion which the former should prove by his evidence. It is very difficult to hold that the appellant has proved execution of the cheque.
5. Assuming that execution of the cheque has been proved, I shall Crl.A.No.258 of 2006 3 examine whether the first respondent has rebutted the presumption under Section 139 of the Negotiable Instruments Act. In Kundan Lal Rallaram v Custodian Evacuee Property, Bombay (AIR 1961 SC 1316), which was followed by the Supreme Court in M.S.Narayana Menon @ Mani v State of Kerala and another (AIR 2006 SC 3366), it was held that to rebut the presumption it is not necessary for the defendant/accused to adduce any evidence; he may rely on the facts brought out in the evidence of the complainant; he may even rely on the inferences that may be taken from the facts and circumstances of the case or the improbabilities in the case.
6. It was brought out in the cross-examination of appellant(PW1) that he had filed six other cases under Section 142 of the Negotiable Instruments Act between 2001 and 2004. The total amount involved in all the cases was about Rs.Six lakhs. This fact indicates that he is a money lender. It is improbable that he would lend Rs.1,70,000/- for five months free of interest to the first respondent. He claimed that his acquaintance with the first respondent was through one Vilas Kumar. The first respondent was examined as DW1. In his examination-in-chief he denied that he had any acquaintance with the appellant. This was not called into question in the cross-examination. The unchallenged testimony of the first respondent(DW1) proves that there was no acquaintance between him and the appellant. It was also brought out in the cross-examination of PW1 that since January, 2000 he was not on good terms with Vilas Kumar. The appellant filed a complaint against Vilas Kumar in 2001, which was taken on the file of the Chief Judicial Magistrate, Crl.A.No.258 of 2006 4 Thiruvananthapuram as C.C.No.253 of 2001. Can it be believed that at the instance of Vilas Kumar the appellant lent Rs.1,70,000/- to the first respondent in July, 2000.
7. Questions were also put to PW1 in the cross-examination about his means to pay the huge amount as loan. He would like the court to believe that it was out of Rs.7,00,000/- he had received as his retirement benefits he lent the money; he did not even deposit a single rupee in his bank account but kept the whole amount with him. He retired in April 1996. The transaction alleged in this case took place in July, 2000. It is unbelievable that for four years he had kept with him the money he had got on his retirement.
8. In re-examination of PW1 certain material facts were brought out by asking leading questions. These questions should not have been allowed. That apart, the inference is that if leading questions had not been put, the witness would not have given the same answers. In other words, the evidence is not voluntary. Bringing out material facts by asking leading questions in the examination in chief is suicidal. It is self goal. The answers given in answer to the leading questions put in the examination in chief are liable to be discarded. This has been so held by the Supreme Court in Varkey Joseph v State of Kerala rep. by the Circle Inspector of Police (AIR 1993 SC 1892).
9.The first respondent who was examined as DW1 testified that he did not have any transaction with the appellant. In his cross-examination it was not even suggested that he took a loan of Rs.1,70,000/- from the appellant as alleged in the complaint and executed Ext P1 cheque. The conclusion that may Crl.A.No.258 of 2006 5 be reached from the failure of a party to put his case to the opposite party in his cross-examination is that the former admits the truth of the testimony and he cannot dispute it. Reliance may be placed on the decision of the Supreme Court in M.B.Ramesh v K.M.Veeraje Urs. (2013)7 SCC 490).
10. The facts and the circumstances discussed above are sufficient to hold that even if there is a presumption under Section 139 of the Negotiable Instruments Act the first respondent has been able to rebut it. The trial court rightly acquitted him.
In the result, this appeal is dismissed.
Sd/-
K.ABRAHAM MATHEW
JUDGE
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/True copy/ P.S.to Judge