E.R.Premarajan vs E.R.Premarajan
2021 Latest Caselaw 10044 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

    THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                       CRL.A.No.978 OF 2011

     AGAINST THE JUDGMENT IN CRA 704/2002 DATED 29-11-2008 OF
         ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY

  C.C.NO. 524/1999 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,
                            THALASSERY


APPELLANT/RESPONDENT/COMPLAINANT:

             E.R.PREMARAJAN
             AGED 52 YEARS
             S/O ACHUTHAN, GENERAL STORES,
             OPP.ASHOKA HOSPITAL, SOUTH BAZAR,
             KANNUR,
             THROUGH POWER OF ATTORNEY HOLDER, K.P.SOMASUNDARAN.

             BY ADV. SRI.P.U.SHAILAJAN

RESPONDENTS/APPELLANT/ACCUSED & STATE:

      1      NIMITHA PREM
             PRANAM, NEAR ERANHOLI BRIDGE,
             P.O.CHIRAKKARA,
             THALASSERY.

      2      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             R1 BY ADVS. SRI.K.R.AVINASH KUNNATH
                         SRI.U.P.BALAKRISHNAN
             R2 BY SRI. M.S.BREEZ, SR. PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021,
THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No. 978 of 2011          2


                             JUDGMENT

This appeal is pitted against two divergent findings by the trial

court and the Sessions Judge in appeal. Complainant in a

proceedings alleging offence punishable under Section 138 of the

Negotiable Instruments Act, has moved this Court under Section

378(4) of the Code of Criminal Procedure, hereinafter referred to as

the Cr.P.C., challenging the correctness of the judgment acquitting the

first respondent. C.C.No.524/1999 was originated before the Judicial

First Class Magistrate, Thalassery, on a complaint preferred by the

appellant alleging offence punishable under Section 138 of the

Negotiable Instruments Act, hereinafter referred to as the Act. The

appellant contended that in consideration of a loan of Rs.1,80,000/-,

borrowed on 02.04.1999, and in discharge of the liability, the first

respondent issued the Ext.P1 cheque dated 10.05.1999, drawn on the

Catholic Syrian Bank Ltd., Thalassery Branch. The appellant

presented the cheque for encashment through the Punjab National

Bank, but it was dishonoured due to insufficiency of funds.

Thereafter, the appellant caused to issue a lawyer notice, but it was

returned unclaimed. Then the complaint was instituted whereupon, the

first respondent was summoned. She pleaded not guilty and faced

trial.

2. The matter is being pursued by the power of attorney

holder, all along. The power of attorney holder was examined as PW1

and Exts. P1 to P7 were marked on the side of the complainant. On

conclusion of evidence, when examined under Section 313(1)(b) of

the Cr.P.C., the first respondent reiterated the plea of innocence. To

the last question, she said that she does not know the complainant, that

she had borrowed an amount of Rs.20,000/-, from the elder brother of

her husband, the power of attorney holder and the cheque was issued

in consideration of that amount as security; even though the amount

was repaid, the cheque was not returned. In defence, she gave

evidence as DW1. After hearing counsel on both sides, by judgment

dated 27.11.2002, the learned Magistrate upheld the arguments of the

appellant and found the first respondent guilty of offence under

Section 138 of the Act and sentenced to undergo simple imprisonment

for six months and to pay fine of Rs.5,000/-, in default to undergo

simple imprisonment for three months. Aggrieved by the same, the

first respondent preferred appeal before the Sessions Court under

Section 374(3)(a) of the Cr.P.C. After hearing counsel on both sides,

by the impugned judgment, the learned Additional Sessions Judge,

Thalassery, reversed the finding of conviction and acquitted the first

respondent. Against that finding, the complainant has preferred this

appeal, after obtaining leave of the Court under Section 378(4) of the

Cr.P.C.

3. I heard the learned counsel on both sides. The learned

counsel for the appellant argued that after having admitted the

execution of the subject cheque, inconsistent stands have been taken

by the first respondent. She did not even receive the notice, even

though it was sent in her correct address. In cross examination of

PW1, the power of attorney holder, she took the stand that the Ext. P1

was issued in consideration of Rs.20,000/- borrowed by her from the

power of attorney holder for the marriage of her daughter. But when

gave evidence as DW1, she maintained that the amount was borrowed

by her husband from PW1 and the Ext.P1 was handed over in a signed

blank form, as security. The learned counsel also complained that the

Sessions Court did not appreciate the contentions properly. The

decision relied on by the Sessions Court in G. Gopan v. Tonny

Varghese and Another [2008 (1) KLT 257] has no application to the

facts of the case. The court was also not justified in concluding that

the appellant, E.R. Premarajan is an imaginary person. Relying on the

decision in Narayanan A.C. and Another v. State of Maharashtra

and Others [2013(4) KLT 21], the counsel submitted that prosecuting

a complaint under the Negotiable Instruments Act by the power of

attorney holder cannot be a taken as an issue for acquitting the

accused.

4. On the other hand, the learned counsel for the first

respondent strongly supported the finding of the Sessions Court in

appeal. According to him, the mere reason that the signature on the

negotiable instrument was admitted by the first respondent, does not

amount to admission of execution. According to the counsel, the

appellant had failed to prove the execution of the document and

therefore, there was no occasion for the court to draw the

presumptions available in favour of the complainant.

5. As noticed above, the complaint was preferred on the

premise that the first respondent, after borrowing an amount of

Rs.1,80,000/- had issued the Ext.P1 cheque, which on presentation

bounced due to insufficiency of funds. Thereafter, the first respondent

was attempted to be alerted through a statutory lawyer notice, but it

was not received; the notice returned unclaimed and thus the

complaint was preferred. After taking evidence, the trial court entered

a conviction against the first respondent, which was reversed in

appeal.

6. Whatever may be the divergent stand taken by the first

respondent, it is quite patent that the Ext.P1 cheque belongs to her.

She had also admitted her signature on the document. According to

her, it was issued in a signed blank form, without incorporating other

writings, namely the name of the drawee, the amount etc. Thus she

wanted to make the court believe that the cheque was issued in such a

manner, in consideration of a loan of Rs.20,000/-, availed by her from

the power of attorney holder; even though the amount was repaid, the

instrument was not returned and thereafter, by misusing the document

such a false case was foisted against her.

7. As mentioned earlier, the first respondent had admitted her

signature on the document. It is her case that it was issued in a signed

blank form. The Hon'ble Supreme Court has considered such a

question in Bir Sing v. Mukesh Kumar [AIR 2019 SC 2446].

Addressing a similar question, the court held thus:-

"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S. 20, S.87 and S.139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment

of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S. 138 would be attracted.

38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."

It is also held in paragraph 40 of the judgment that even a blank

cheque leaf, voluntarily signed and handed over by the accused, which

is towards some payment, would attract presumption under Section

139 of the Negotiable Instruments Act, in the absence of any cogent

evidence to show that the cheque was not issued in discharge of a

debt. It is a judgment rendered by two hon'ble judges of the Supreme

Court. In the decision reported in Kalamani Tex and Another v.

Balasubramanian P. [ILR 2021 (1) Kerala 855], the above decision

has been reiterated by the Hon'ble Supreme Court. According to the

apex court, even if we take such an argument that a blank cheque was

given, yet the statutory presumption cannot be obliterated.

8. Now, as noticed earlier, the first respondent has no dispute

about the instrument and the signature found thereon. Ext.P1 bears the

signature and the name of the first respondent put in her own hand,

which is admitted by her. No doubt the other writings are in different

hand. Prime reason for reversing the finding of the trial court by the

learned Additional Sessions Judge is this patent difference in the

handwriting on the other parts of the document. But once the first

respondent has admitted her signature, it renders the complainant/

appellant capable to draw the presumptions under Sections 118 and

139 of the Act. It is for the first respondent to rebut the presumption at

least by preponderance of probabilities.

9. The question then arises for consideration is whether the

first respondent could rebut the presumption. After revisiting the

evidence, in my assessment, the answer should be in negative. From

the very outset, she had been taking a negative attitude. Even though

the lawyer notice was tendered in her correct address, she refused to

receive the same. It is a matter of adverse inference. Her first

expression of the transaction had come up when the power of attorney

holder, PW1 was cross examined. Then she took the stand that the

document was given in consideration of Rs.20,000/-, borrowed by her,

that the said amount has already been repaid. But when she gave

evidence as DW1, a different version has come, that the amount of

Rs.20,000/- was borrowed by her husband from PW1 and she had

merely handed over a signed blank cheque for Rs.20,000/-. The first

respondent is the sister-in-law of PW1, power of attorney holder. The

case of PW1 is that the appellant had lent the amount to the first

respondent on his assurance. Whatever it may be, once the signature

in Ext.P1 stands admitted, it is for her to rebut the presumptions; that

has not been attempted.

10. Moreover, a plea of discharge raised by the first

respondent also remains on the papers. She had said that the sum of

Rs.20,000/-, borrowed by her was already repaid and still the cheque

was not returned. It is trite that the burden of proving a plea of

discharge is on the person who raises the contention. Particulars of

such repayment are lacking. It also does not stand the reason that, in

spite of repaying the amount, she had not taken steps to get back the

document alleged to have given as security.

11. The learned counsel for the first respondent argued that the

appellant is a fictitious person, such a person is not available and

everything was stage managed by PW1. It is true that the first

respondent has taken such a plea. But when she was examined as

DW1, at the beginning stage itself she has stated that she knew the

complainant. After taking such a stand in her chief examination, she

cannot be heard to take a contention challenging the identity of

complainant.

12. The upshot of the above discussion is that the appellant is

entitled to succeed. Ext.P1 cheque can be found to be issued in

discharge of a legally enforceable liability as seen on its face value.

The presumptions available in favour of the complainant are not

rebutted. That would attract the offence under Section 138 of the Act.

That means the finding of the lower appellate court acquitting the first

respondent cannot be sustained and is liable to be interfered with and

the conviction entered by the trial court is to be restored.

Consequently, the first respondent is sentenced to pay fine

Rs.1,80,000/- (Rupees One Lakh and Eighty Thousand only), in

default to undergo simple imprisonment for one year. When the

amount is realised, it shall be paid to the appellant as compensation.

The appeal is allowed as above.

SD/-

K.HARIPAL JUDGE DCS/23.03.2021