Kerala High Court
K.Sudevan vs T.H.Muhammedu Kunju on 15 February, 2007
Author: K. Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2293 of 2004(B)
1. K.SUDEVAN, S/O.KUNJUNNI,
... Petitioner
Vs
1. T.H.MUHAMMEDU KUNJU, THEKKEKKARA
... Respondent
2. STATE OF KERALA, REPRESENTED
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.TPM.IBRAHIM KHAN
The Hon'ble MRS. Justice K.HEMA
Dated :15/02/2007
O R D E R
K. HEMA, J.
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CRL. R.P. NO. 2293 OF 2004
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Dated this the 15th day of February, 2007.
O R D E R
The revision petitioner was convicted for offence under section 138 of the Negotiable Instruments Act ('the Act', for short) and he was sentenced by the trial court to undergo imprisonment for six months and to pay a fine of Rs. 1,000/-. In default of payment of fine, he was directed to undergo simple imprisonment for a further period of 15 days. An amount of Rs. 4,50,000/- was awarded as compensation to be paid to the complainant under Section 357(3) of the Code of Criminal Procedure. In appeal filed by accused, the said conviction and sentence were confirmed. Hence, this revision petition.
2. According to prosecution, accused-revision petitioner handed over Exhibit P9-cheque dated 04.02.1993 to discharge a debt to the tune of Rs. 4,50,000/-, which accused owed to the complainant. The said cheque was dishonoured on presentation to the Bank. Thereafter, accused approached complainant and wanted to settle the issue, when he executed another cheque [Crl.R.P.2293/04] 2 from the house of complainant in Kuttappuzha village. The said cheque is Exhibit P1, dated 04.10.1993 which, on presentation, was dishonoured with an endorsement, 'funds insufficient'. Notice was issued. No reply was sent by accused and no amount was paid. After complying with the legal formalities, a complaint was filed against accused, alleging offence under Section 138 of the Negotiable Instruments Act.
3. To prove complainant's case, complainant examined PWs 1 to 4 and marked Exhibits P1 to P13 on his side. On the side of accused, DW1 and DW2 were examined and Exhibits D1 to D4 were marked.
4. On going through the records, I find that prosecution has not established its case beyond reasonable doubt. Learned counsel for complainant-respondent however, vehemently contended that dishonour of the cheque alone need be established to establish an offence under Section 138 of the Negotiable Instruments Act and in this case, there is no dispute that cheque Ext. P1 was dishonoured. Therefore, all the facts necessary to constitute the offence are established, and hence, offence under Section 138 of the Act is proved, it is submitted. [Crl.R.P.2293/04] 3
5. With due respect, I would only reject this argument. On going through the provision contained in Section 138 of NI Act, I find that dishonour is not the sole material fact to be proved to constitute an offence under Section 138. To constitute offence under section 138 of the Act, several ingredients are to be established and of these, the most important ingredient is the drawing of the cheque.
6. Now coming to the facts, I find that regarding the drawing of the cheque, the evidence adduced is totally unsatisfactory. It was held by the trial court itself that in the absence of establishing by satisfactory evidence that the cheque was drawn or the offence is made out, a person cannot be convicted. A person can be convicted only on the basis of satisfactory evidence proving each and every ingredient of the offence. When there is no satisfactory evidence from the side of the prosecution, the accused deserves to be acquitted.
7. On an evaluation of the evidence on record, the trial court held that "the oral evidence adduced in this case by both parties is unsatisfactory. Both parties are not deposing the entire truth. This court therefore cannot rely on the evidence of either of the [Crl.R.P.2293/04] 4 parties". If the evidence adduced by prosecution is unsatisfactory, how can the court convict the accused? In any prosecution, the guilt of the accused has to be proved beyond reasonable doubt.
8. The trial court held that "no explanation is provided as to why no reply was given to the notice sent by the complainant, if actually the story stated in Ext. P7 notice was not true. Therefore, it appears that the case put forward by the complainant is true.......... If the story set up by the complainant was not true, he would have definitely replied to the notice sent by the complainant". It is curious to note that the trial court after holding that there is no oral satisfactory evidence from the side of the prosecution, relied upon mainly the omission on the part of the accused to send a reply to the notice, as a circumstance to enter a finding that the prosecution case is true. Prosecution case cannot be proved by the mere failure on the part of the accused in sending a reply notice, especially when the evidence adduced by the prosecution is unsatisfactory.
9. Though the trial court considered the evidence at length and discussed the disputed facts in so many pages, it is unfortunate that the lower appellate court did not take any effort [Crl.R.P.2293/04] 5 to enter findings on the relevant facts. The lower appellate court held that "the evidence of PW3 reveals that though originally Ext. P1 cheque was handed over and issued by the accused in a blank form to him, subsequently as per the instructions of the accused Sri. Mani who had accompanied the accused had filled it up and handed it over to the complainant. Thereby the complainant-first respondent had discharged the onus that was on him for a successful prosecution under Section 138 of the N.I. Act. Then the burden had shifted upon the appellant".
10. The above findings are totally incorrect. The prosecution does not have a case that Sri. Mani who had accompanied accused had filled up the cheque, under instructions from the accused. The lower appellate court has, in fact, invented a new theory which is not revealed from allegations made in the complaint or any of the materials placed before the court. Therefore, its finding is not supported by any of the materials placed before the court and revisional court can certainly interfere when such gross errors are committed by lower appellate court in entering a finding of fact on the basis of facts which are not consistent with prosecution case. [Crl.R.P.2293/04] 6
11. Learned counsel appearing for the respondents vehemently contended that the standard of proof required in a prosecution under Section 138 of the Act is not as high as in any other prosecution. According to him, on an assessment or evaluation of the object of the Act, the court shall not insist on proof beyond reasonable doubt, in cases involving offence under Section 138 of the Act. Learned counsel appearing for the respondents relied upon the decision reported in M/s. Dalmia Cement (Bharat) Ltd. vs. M/s. Galaxy Traders & Agencies Ltd. & Others (JT 2001 (2) SC 1) wherein it has been laid down as follows:
"the laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are required to be discouraged lest it may affect the commercial and merchantile activities in a smooth and healthy manner".
12. On going through the object of the Act, I could not come across anything therein to show that the standard of proof required in an offence under Section 138 of the Act is less than [Crl.R.P.2293/04] 7 any other criminal prosecution. In fact, it has been laid down in the Statements of Reasons and Objects that an honest drawer has to be protected and there are safeguards in the chapter itself by which the offence under Section 138 of the Act has been introduced. When the legislature in the Statements of Reasons and Objects indicates that there are safeguards in the provision themselves to protect an honest drawer against harassment, the signal given to the courts is that the legislature intended to protect an honest drawer and for that purpose, certain provisions are introduced to the Chapter.
13. When a civil liability has been transformed into a criminal liability, legislature has taken care to see that an honest drawer does not save accused on such transformation. The legislature has therefore introduced certain safeguards in the Chapter by which Section 138 of the Act is introduced. Anyway, It is not specifically laid down anywhere in the Act that the standard of proof of prosecution case is lesser than in any other prosecution. In any prosecution, the burden is on the prosecution to prove its case beyond reasonable doubt. I do not find any reason why this normal rule be departed in the case of an offence under Section 138.
[Crl.R.P.2293/04] 8
14. Before a person is punished and sentenced to imprisonment, the court must insist for proving the case beyond reasonable doubt. I do not intend to take a different approach in an offence under Section 138. Since the objectives of law, as disclosed in the Statements of Objects and Reasons that an honest drawer shall not be harassed, I am not prepared to resort to any innovative measure or method by laying down that the law in criminal prosecution for offence under Section 138, the standard of proof is not as heavy as in any other criminal prosecution.
15. Now coming to the facts, it can be seen that as per the complaint, the complainant alleged that a cheque dated 04.10.1993 was "executed" by the accused at the complainant's house at Kuttappuzha. The complainant has a definite case that the cheque was executed by the accused himself. In chief examination he stated that the accused himself had written and signed the cheque from his house at Kuttappuzha. In the chief examination, the complainant PW3 specifically stated that Ext. P1 was signed and written by the accused at his house at Kuttappuzha.
[Crl.R.P.2293/04] 9
16. But, the defence was successful in bringing out that the cheque Ext. P1 was a blank signed cheque leaf when it was handed over to complainant. This fact is revealed from Ext. D1 itself. It is admitted by PW3 that the cheque Ext. P1 was handed over to the complainant in a blank form, which was only signed by the accused. He admitted that this fact was endorsed in his own handwriting in Ext. D1. It is also stated by him that such endorsement is true. Therefore, the accused was successful in establishing by the admission of PW3 himself that the cheque Ext. P1 when it was handed over was a blank signed cheque leaf.
17. But, when PW3 faced a situation where he was forced to explain as to how the cheque contained an "order in writing," he came forward with a new case in the cross-examination. He deposed in cross- examination that it was filled up by yet another person than the accused. I am not going to the evidence in detail. But, I fully agree with the finding entered by the trial court that the oral evidence adduced by the prosecution is totally unsatisfactory. Therefore, on the basis of such evidence, it is not possible to hold that the order in writing in Ext. P1 was made by the accused.
[Crl.R.P.2293/04] 10
18. In such circumstance all what a court can hold is that there was only a signed blank cheque leaf with the complainant, PW3. It cannot be said to be a cheque at all. There is no satisfactory evidence to prove that the cheque was drawn by the accused. There is no evidence to show that the cheque was created, prepared or made by the accused. In the absence of any evidence to prove that the cheque was drawn by the accused, it has to be held that the prosecution thoroughly failed to prove its case by proving one of the most vital ingredients which constitutes the offence for which accused faces trial.
19. It is curious to note that the trial court found "Further it was held that when a cheque is admittedly issued with blank date and when the payee has no objection with regard to the name, the amount and signature, it can be presumed that there is an implied consent for putting the date as and when required by the beneficiary and get it cashed. In other words, when the date is not put by the payee or the drawer on the cheque the presumption under Section 118 would arise. The burden is therefore entirely on the drawer of the cheque to establish that payee had no authority to put the date. Therefore, the burden will shift to the drawer to establish that he had not authorized the [Crl.R.P.2293/04] 11 drawee to put the date on the cheque".
20. The court also held that ".......Therefore it appears that he must have given Ext. P1 cheque to the complainant so that the complainant could fill up the same and present it before the bank in case the transaction as evidenced by the agreement between the parties failed". The lower court appears to have proceeded on the basis that even though the cheque is proved to have been a signed blank cheque, the court can presume that the accused gave an implied authority to the complainant to fill up the same. This was one of the reasons why the court entered a conviction against the accused.
21. There can be no doubt that this approach is thoroughly improper and unsustainable. When the prosecution fails to prove the drawing of the cheque, the entire prosecution fails. When the prosecution fails to establish that the cheque produced before the court was only a signed blank cheque leaf which was handed over, the only inference possible will be that there was no "cheque" in existence, as contemplated by Sections 5 and 6 of the Act and that the cheque was not drawn by the accused as alleged by the prosecution. But, if the court finds that the defence case is acceptable and the cheque produced before the [Crl.R.P.2293/04] 12 court was a blank signed cheque which did not constitute a cheque as defined under the Act, the court has no other alternative than to enter a finding that the prosecution failed to establish that the cheque was created or made or drawn by the accused. At any rate, the court cannot invent a new story that the accused gave an implied authority to fill up cheque, which neither accused nor complainant alleged.
22. Of course, if the prosecution case is that the accused had given him an authority to fill it up, the prosecution must come forward with such a case. This is a case where the complainant did not put forward a case that the accused at any time gave him an implied authority to fill it up and present the cheque. On the other hand, his case was that the cheque was created by accused himself which is belied by evidence. When even the prosecution does not have a case that implied authority was given, it is totally illegal and improper for the court to come to such finding on the basis of its surmises and conjunctures. The findings entered into by the court below that the accused must have given an implied authority to fill up the cheque, is not supported by any allegation in the complaint or in prosecution evidence.
[Crl.R.P.2293/04] 13
23. If the complainant does not have such a case, the court ought not to have invented a case for the mere sake of convicting the accused. When the accused has successfully established that the cheque was a blank signed cheque, instead of holding that the complainant's case is not true, the court proceeded a step further to make its own case for and on behalf of the prosecution which can never be legally sustained. When the prosecution has no case that any blank signed cheque was handed over with an implied authority to fill it up, the court shall not make an invention of a new case for the mere sake of a conviction to be entered against the accused. Nowhere in the Act there is any provision which allows the court to presume that a signed blank cheque leaf would have been given with an implied authority to fill it up.
24. I have considered scope of presumption under section 139 of the Act in Kamalammal vs. Mohanan (2006 (3) KLT
972). No law allows the court to presume that the signed blank cheque handed over to the complainant is given with an implied authority to fill it up, in the absence of any evidence or any presumption to such effect either in law or facts. Unfortunately, the courts have created or invented a new case which even the [Crl.R.P.2293/04] 14 prosecution did not have and it was all done only for the mere sake of convicting the accused. The inference that that there was an implied authority to fill up the cheque which is not supported by evidence or by any material placed before the court and hence it is thoroughly illegal and unsustainable.
25. Learned counsel appearing for the respondents strongly contended that the admission of signature in the cheque goes a long way to prove the execution of the cheque as held by this Court in the decision reported in Bhaskaran Nair v. Abdul Kareem (2006(4) KLT 48). But on going through the decision, I find that it is not applicable to the facts of this case. This is a case where the claim made by complainant that a singed and filed up cheque was handed over was found to be untrue and the defence case that it was a blank cheque was accepted.
26. It is also relevant to note that in Bindu v. Sreekantan Nair (2007(1) KLT 525) that " .....But certainly the right of the accused to contend that a blank signed cheque was misutilised by the payee cannot be taken away by such mere admission of signature. Ultimately when the evidence is appreciated the Court shall have to consider whether admission of signature coupled with the other circumstances is sufficient to prove execution. But [Crl.R.P.2293/04] 15 the right of the accused is to show that only the signature is his/hers and the other entries are made unauthorisedly by the complainant cannot be taken away....."
27. So, in this case, the case set up by the prosecution that the cheque was drawn by the accused, written and signed by him as seen in the chief examination of PW1 has not been proved by PW3. No satisfactory evidence is adduced to establish that the said case is true. On the other hand, PW3 himself has given a go- by to such case and developed another case that the writing in the cheque was that of an entirely different person. The trial court also entered a finding that there was an implied consent given by the accused to the complainant to fill up and therefore the cheque Ext. P1 can be said to have been drawn. None of these findings can be sustained since those are not supported by evidence in this case and those are also inconsistent with the evidence.
28. The conviction entered against the accused are based on pure surmises or conjectures and not supported by evidence. Hence, it is those are illegal and liable to be set aside. In an offence under Section 138, the prosecution has also to establish that the drawing of the cheque was for the discharge of a debt [Crl.R.P.2293/04] 16 or other liability. The liability as per the prosecution case is to pay Rs. 4,50,000/- to the complainant. Such liability is not supported by oral evidence as found by the trial court itself, which is confirmed by the lower appellate court.
In the result, the conviction and sentence passed against the revision petitioner are set aside. The revision petitioner is not found guilty of offence under Section 138 of the Act and he is acquitted of the said offence. He is set at liberty forthwith.
This revision petition is allowed.
K. HEMA, JUDGE krs.