Kerala High Court
K.Uthaman vs V.Nagamma on 24 March, 2021
Author: T.R.Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
CRL.A.No.1042 OF 2006
AGAINST THE ORDER/JUDGMENT IN CC 1113/2002 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, KOCHI
APPELLANT/COMPLAINANT:
K.UTHAMAN
S/O KUMARAN, H.NO.15/29/90,
KILIYAMPADAM HARIJAN COLONY,
MOOLAMKUZHY, KOCHI-2.
BY ADVS.
SRI.K.I.MAYANKUTTY MATHER
SRI.SUNIL SANKAR.P.
SMT.S.LAKSHMY
RESPONDENTS/ACCUSED AND STATE:
1 V.NAGAMMA
W/O BALAN, H.NO.15/1968,
RAMESWARAM HOUSING COLONY,
NAZARETH, KOCHI-2.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.ASHIK K.MOHAMMED ALI
SMT.S.LAKSHMY
SRI.PEEYUS A.KOTTAM
R2 BY PUBLIC PROSECUTOR SMT.SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1042 OF 2006
2
JUDGMENT
Dated this the 24th day of March 2021 The complainant in C.C.No.1113/2002 on the file of the Judicial First Class Magistrate Court II, Kochi, has filed this appeal being aggrieved by the judgment dated 30.03.2006, whereby the 1st respondent has been found not guilty of offence under Section 138 of the Negotiable Instruments Act and acquitted.
2. Heard Sri.K.I.Mayankutty Mather assisted by Ms.Kalyani Krishna on behalf of the appellant, Sri.Ashik K.Mohammed Ali on behalf of the 1 st respondent and Smt.Sylaja learned Public Prosecutor on behalf of the State.
3. The case of the complainant is that the 1 st accused had borrowed an amount of ₹30,000/- from the complainant and in discharge of the said debt, the 1st accused had issued a cheque dated 12.09.2002 drawn on Federal Bank Ltd. Kochi for a sum of ₹30,000/-. It is contended that the cheque was dishonoured for the CRL.A.No.1042 OF 2006 3 reason "insufficiency of funds" and after serving statutory notice, the complaint was filed.
4. The case of the 1st respondent was that she had a transaction with one Mr.Charles @ Joseph (examined as DW1). According to her, she had borrowed ₹5,000/- from DW1 5 years back and had issued a blank cheque to him. It was stated that DW1 had introduced her in the Bank and helped her to start a Bank account and to get cheque leaves. It is her case that DW1 is a person who is operating behind the false litigation and the blank cheque leaf which had been handed over to DW1 is being misused. The court below found that even though the signature in the cheque is admitted, the presumption under Section 139 of the Negotiable Instruments Act stands rebutted by the defence evidence and on that finding the 1st accused was acquitted.
5. The counsel for the appellant relied on the decisions of the Hon'ble Supreme Court in Rohitbhai Jivanlal Patel V. State of Gujarat and Another reported in (2019 (2) KHC 243) and Bir Singh V. Mukesh Kumar CRL.A.No.1042 OF 2006 4 reported in (2019 (1) KHC 774) in support of his contentions. The judgment in Rohitbhai supra has been relied on to submit that, where the accused is not denying the signature on the cheque, it is required to be presumed that the cheque in question was drawn for consideration and that the complainant has received the same in discharge of an existing debt. However, the Hon'ble Supreme Court has also held in the very same judgment that the presumption shifts the onus to the accused, who has to establish a proper defence, so as to rebut such a presumption. Suffice to say, once the accused establishes a proper defence, which would rebut the presumption, the benefit of the presumption will no longer be available to the complainant and he will have to prove the execution of the cheque and the existence of the liability. Reliance is placed on Bir Singh supra, for contending that mere filling up of cheque by the payee would not invalidate cheque. This contention was put forward mainly to meet the situation, that the cheque which has been produced as Ext.P1 shows that the CRL.A.No.1042 OF 2006 5 name of the accused in written in Tamil, and an initial and thumb impression is put, while the name of the payee and the amount has been written up in Malayalam, thus indicating that the cheque has been filled up by someone other than the 1st respondent. In oral evidence the complainant has stated that the 1st respondent belongs to Coimbatore.
6. The counsel for the 1st respondent on the other hand submitted that the evidence tendered by DW1 would clearly show that he is a money lender and that he has helped the accused to open the Bank account. It is further evident that he is in possession of blank cheque leaves signed by the accused. It is also pointed out that PW1 during cross examination has admitted that PW1 and DW1 are accused in another crime registered by the Thoppumpadi Police on charges that they had misused the cheques issued by the 1 st respondent. He has also stated in the evidence that he does not know in whose handwriting the cheque has been filled up. This version is also supported by the CRL.A.No.1042 OF 2006 6 evidence of DW1. He submitted that the accused has no transaction with the complainant and the cheques issued towards the transactions with DW1 are being misused.
7. I find considerable force in the contentions raised by the counsel for the 1st respondent. The evidence tendered by PW1 itself is sufficient to show that he is an accused in a crime for a charge that he has misused a cheque which was signed by the accused/1st respondent. The evidence of PW1 and DW1 are sufficient to rebut the presumption regarding the consideration for the cheque in question and it is for the complainant to prove otherwise that the cheque has been executed by the 1st respondent and has been issued for satisfying an existing debt payable to the complainant. No such proof is available in the evidence on record and the appellant has solely relied on the presumption under Section 139. It is also noticed that even though DW1 is examined as a defence witness, it cannot be said that DW1 is in any way an interested witness insofar as the accused is concerned. This is for the reason that CRL.A.No.1042 OF 2006 7 DW1 and PW1 are co-accused in a crime which has been initiated at the instance of the 1st respondent.
In the above circumstances, I do not find any reason to interfere with the well considered judgment dated 30.03.2006 of the Judicial First Class Magistrate Court II, Kochi in C.C.No.1113/2002. The appeal fails and is dismissed. In the circumstances of the case, there will be no order as to costs.
Sd/-
T.R.RAVI, JUDGE Pn