Kerala High Court
Chandran Pillai vs Sreedevi on 8 April, 2021
Equivalent citations: AIRONLINE 2021 KER 416
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
CRL.A.No.1534 OF 2011
AGAINST THE JUDGMENT IN CC NO.56/2010 (CC 746/2009 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA) OF THE JUDICIAL FIRST
CLASS MAGISTRATE III, MAVELIKKARA, DATED 20.05.2011.
LEAVE TO FILE APPEAL WAS GRANTED BY ORDER IN CRLL.P NO. 678/2011
DATED 03-08-2011 OF HIGH COURT OF KERALA
APPELLANT/COMPLAINANT:
CHANDRAN PILLAI,
S/O NARAYANA PILLAI
KARIPOLIL THARAYIL,
EREZHA NORTH,
CHETTIKULANGARA.P.O,
KANNAMANGALAM VILLAGE,
MAVELIKARA.
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
SRI.K.JAGADEESH
RESPONDENTS/ACCUSED AND STATE:
1 SREEDEVI, S.M.VIHAR,
KUNNAM, THAZHAKKARA, MAVELIKKARA.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.A.R.DILEEP
R1 BY ADV. SRI.GEORGE VARGHESEPERUMPALLIKUTTIYIL
R2 BY ADV. SR.PUBLIC PROSECUTOR, SRI. M.S.BREEZ
R1 BY ADV. SMT.NAVA VARGHESE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2021,
THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
CRL.A.No.1534 OF 2011
2
JUDGMENT
This is an appeal preferred under Section 378(3) and (4) of the Criminal Procedure Code, hereinafter referred to as the Cr.P.C., challenging the legality and correctness of the judgment of the Judicial First Class Magistrate-III, Mavelikkara, in C.C.No.56/2010. The appellant is the complainant in the complaint. He had prosecuted the first respondent/accused alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act.
2. According to the complainant, on 09.03.2006 the first respondent had borrowed an amount of Rs.70,000/- from the complainant for the educational purpose of her son. At that time, she had agreed to repay the amount after a period of 3½ years. On 09.04.2009 the accused/first respondent issued the cheque bearing No.8748 dated 09.04.2009 for Rs.70,000/- drawn on the Thiruvalla branch of the Central Bank of India. The complainant presented the cheque for encashment through the Mavelikkara branch of CRL.A.No.1534 OF 2011 3 Alappuzha District Co-operative Bank, but it was returned dishonoured due to insufficiency of funds on 29.09.2009. He got back the cheque from his banker on 07.10.2009. Immediately thereafter, by a lawyer notice dated 12.10.2009, the first respondent was notified about the return of the cheque due to insufficiency of funds and called upon her to pay the amount. But she did not send any reply and nor the amount was paid, which gave the complainant cause of action for initiating prosecution under Section 142 of the Act.
3. After taking cognizance, the case was taken on file and the accused was summoned. On appearance, when particulars of the offence were read over and explained, she pleaded not guilty. The complainant and two witnesses were examined on the side of the prosecution as PWs 1 to 3. Exts.P1 to P7 were also marked. After closing the prosecution evidence, when examined under Section 313(1)(b) Cr.P.C, the first respondent maintained that she is innocent, that she had not borrowed any amount from the appellant. Her counsel filed a statement contending that she has no CRL.A.No.1534 OF 2011 4 acquaintance with the complainant; she saw the complainant for the first time after the institution of the complaint. According to her, the cheque and the agreement were not given by her. She had not borrowed any amount from the appellant on 09.03.2006 or on any other date, so that, she has no liability to pay any amount to the appellant; she had given a signed blank cheque and signed blank stamp paper to one Sudeesh Kumar of Vazhuvadi, in consideration of some other transaction. In the said agreement, her son was not an attestor. She had put only one signature on the stamp paper. The other signatures were not put by her. All the documents were subsequently fabricated for the purpose of this case at the instance of the said Sudeesh Kumar. The appellant is the agent of the said Sudeesh Kumar. Thereafter, the accused/first respondent gave evidence as DW1 and Ext.D1 is marked on her side. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found the first respondent/accused not guilty of the offence punishable under Section 138 of the Act and acquitted her under Section 255(1) of the Cr.P.C. Challenging that judgment, the CRL.A.No.1534 OF 2011 5 appellant initially moved an application for leave before this Court and after obtaining leave, preferred this appeal.
4. I heard the learned counsel for the appellant and also the learned counsel for the first respondent. According to the learned counsel for the appellant, by the oral testimony of PWs1 to 3 and Ext.P1 cheque and Ext.P7 agreement, the appellant could prove that there was a transaction in which the first respondent had borrowed an amount of Rs.70,000/- from the appellant on 09.03.2006. She had borrowed that amount after giving the Ext.P7 agreement on a stamp paper; it was done in the presence of PW2 the scribe and also PW3 the independent witness. After the period stated in the agreement she gave the Ext.P1 cheque and the dishonour of the same has given rise to cause of action for initiating prosecution under Section 142 of the Act.
5. According to the learned counsel, the signature in the cheque and the stamp paper are admitted, the fact that no reply was sent to the lawyer notice are sufficient to draw presumptions under Sections 118 and 139 of the Act in favour of the appellant. That CRL.A.No.1534 OF 2011 6 means, according to the counsel, the transaction and the consideration of the transaction can be taken as proved. Since the first respondent has admitted her signature on the instrument is a matter for drawing presumption in favour of the appellant. As the first respondent has failed to rebut the presumptions and discharge the burden fallen on her, the appellant should have been granted an order in his favour and the first respondent should have been convicted. On the other hand, according to the learned counsel for the first respondent, the appellant could not give a genuine, believable story before the court. Ext.P7 is not a genuine document. If such a document was executed as alleged by the appellant, on furnishing the Ext.P1 cheque in 2009, it would have been taken back, but that has not been done. It is also not believable that an autorikshaw driver, the appellant could arrange and lend such a huge amount of Rs.70,000/- that too for a long period of 3½ years without insisting payment of any interest. The learned counsel for the first respondent also stated that the complaint lacks details. PW2 and PW3 are friends of the complainant. The Ext.P4 lawyer notice does CRL.A.No.1534 OF 2011 7 not satisfy the requirement under Section 138 (b) of the Act. So the learned counsel submitted that on overall consideration, the appellant could not prove the case and there is absolutely nothing to interfere with the judgment under challenge.
6. In support of the contention that the notice does not satisfy Section 138(b) of the Act, the learned counsel relied on the decision reported in Suman Sethi v Ajay [2000 (1) KLT 701 (SC)]. He also relied on the decision in Rahul Builders v Arihand Fertilizers and Chemicals [2007 (4) KLT 977 (SC)]. In reply, the learned counsel for the appellant said that the cheque amount has been specifically demanded in the Ext.P4 notice and the learned Magistrate did not appreciate the contentions of the parties in proper perspective and therefore, the judgment warrants interference in appeal and he prayed for convicting the first respondent under Section 138 of the Act. He also prayed for granting appropriate amount as compensation to the appellant.
7. The appellant/complainant was examined as PW1; PW2 is the scribe of Ext.P7 document. He said that the agreement was CRL.A.No.1534 OF 2011 8 executed on the stamp paper produced by the first respondent at the time of passing Rs.70,000/-. It was done at the residence of the appellant. He also deposed the presence of the witness and also the son of the first respondent. PW3 is the attestor to the Ext.P7 agreement. He has dual role. According to him, he had also witnessed the passing of Ext.P1 cheque, in the residence of the appellant on 09.04.2009. According to him, the cheque was brought prepared and signed in the presence of himself and the appellant.
8. The learned Magistrate considered the Exts.P1 and P7 documents and after evaluating rival contentions and materials, concluded that the version of the appellant is not probable and that of the first respondent is more probable and, on that premise, point No.1 was found against the appellant/complainant; ultimately that resulted in entering a finding against the complainant. After revisiting evidence, I am also of the view that the appellant could not make out a foolproof, believable and trustworthy case in his favour, warranting interference in appeal. Firstly, the very case that the first respondent had borrowed an amount of Rs.70,000/- on CRL.A.No.1534 OF 2011 9 09.03.2006 agreeing to repay the same after a period of 3½ years sounds incredible. The very case of the first respondent is that she has no acquaintance with the appellant. But the appellant wanted to make the court believe that they had long acquaintance, they are known to each other for long and that was how an amount of Rs.70,000/- was borrowed from him. Of course, if such an acquaintance is proved, such a transaction cannot be held unnatural. But very many incongruities are made out in the prosecution case. The very story that such an amount was borrowed from him agreeing to repay after 3½ years sounds artificial and not genuine. The very genuineness of the transaction thus appears doubtful.
9. It is stated that such an amount was borrowed for the educational purpose of the son of the first respondent. But, the Ext.D1 document was produced from the college, where he was prosecuting his engineering degree course, shows that by 2006 his course had completed. It is also stated that he had studied after availing a loan from the State Bank of India. Whatever it may be, the Ext.D1 belies the case that the loan was availed for the educational CRL.A.No.1534 OF 2011 10 purpose of her son.
10. Secondly, as rightly noticed by the learned Magistrate, the Exts.P1 and P7 documents, on the face of it, do not look genuine. Ext.P1 patently bear different hand writings; the name of the drawee, the amount, date etc., are in different ink. Not only that, the ink is seen spread. On the other hand, the signature of the drawer is in different ink. But that itself is not sufficient to draw adverse inference about the genuineness of the document. It is true that the first respondent has admitted her signature on the instrument. But that alone is not sufficient to assume genuineness of the document or to draw presumptions under Sections 118 and 139 of the Act in favour of the complainant. If only the execution of the document is admitted or proved, the complainant will be entitled to draw the statutory presumptions in his favour. Here, merely for admitting the signature on the document, its genuineness cannot be presumed. There is no presumption of fact. The initial burden that the cheque was issued in a genuine transaction between the parties is proved, then only the statutory presumptions can be drawn by the appellant. CRL.A.No.1534 OF 2011 11
11. Here, in my assessment, that has not been established beyond doubt. It was urged by the learned counsel for the respondent that the details of transaction are not stated in the complaint or in the lawyer notice. But that is not necessary at all. The only question is whether the Ext.P1 is a genuine document, supported by consideration. If only its genuineness is proved, the statutory presumptions can be drawn. In fact, Ext.P7 is the sheet anchor of the appellant. But there are very many incongruities surrounding this document also and it cannot be believed that such a document was handed over as an agreement as wanted by the appellant to be made the court it to believe. As rightly noticed by the learned Magistrate, it appears that his scribe has strained very much to adjust the space by modulating the size of letters in accordance with the space available above the signature of the first respondent, which is shown in the stamp paper. Moreover, though four signatures of the first respondent are shown in the stamp paper, which, according to the appellant, are that of the first respondent, the first respondent admits only one. On the very face of the CRL.A.No.1534 OF 2011 12 document, three signatures are in one ink and another signature on the top, that is found against the name of the first respondent, is in different ink. If the document was signed by the first respondent in a single stretch, two pens might not have been used for the purpose. Similarly, the size of the letters, the attempt of the scribe to fill the gap and the different fonds used for the purpose etc., give an insight that it is not a genuine document executed by the first respondent in the manner alleged by the appellant. I do not think that the decisions cited by the learned counsel for the first respondent has any application to the facts of the case. In fact, no blame can be attached against Ext.P4 notice. If the Ext.P1 cheque is taken as genuine, no doubt, the Ext.P4 will serve the purpose. But there are reasons to doubt the very veracity of the appellant. The version of the appellant sounds highly artificial, synthetic and shoddy. In such a circumstance, the learned Magistrate was not expected or justified in drawing a presumption in favour of the appellant so as to convict the first respondent. If only the appellant/complainant has discharged his initial burden, the first respondent is expected to rebut the CRL.A.No.1534 OF 2011 13 presumption.
12. In short, the appellant has not put up a genuine, convincing case; the learned Magistrate cannot be found fault with for acquitting the first respondent, in spite of the fact that appreciation of evidence is not up to the expectation. Whatever it may be, overwhelming reasons are not made out to interfere with the judgment of acquittal passed by the learned Magistrate, under Section 378(4) of the Cr.P.C.
In the result, the appeal is only to be dismissed. Dismissed.
Sd/-
K.HARIPAL
JUDGE
Jms/04.04
//True Copy// P.A to Judge