Sasikumar.K vs P.K.Surendran
2021 Latest Caselaw 8172 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                   THE HONOURABLE MR. JUSTICE K.HARIPAL

     WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942

                           CRL.A.No.872 OF 2011

    CC 590/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS, RAMANKARY

      CRL.LP 306/2011 DATED 23-05-2011 OF HIGH COURT OF KERALA


APPELLANT/COMPLAINANT:

             SASIKUMAR.K
             VADAKKEKUNNATHU KALAM HOUSE, VELIYANAD VADAKKU,
             KUTTANAD, ALAPPUZHA.

             BY ADVS.
             SRI.T.G.RAJENDRAN
             SRI.P.K.ABDURAHIMAN (POOLACKAL KARATCHALI)

RESPONDENTS/ACCUSED AND STATE:

      1      P.K.SURENDRAN
             PUZHUKANDAM KAVIL HOUSE, CHERUKARA P.O., KAVALAM,
             ALAPPUZHA-676505

      2      STATE OF KERALA REP. BY PUBLIC
             PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

             R1 BY ADV. SRI.R.AZAD BABU

OTHER PRESENT:

             SR.PP - SRI. M.S.BREEZ

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021,
THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:
 Crl.A.872/2011                       2




                            JUDGMENT

This appeal is preferred under Section 378(4) of the Code of

Criminal Procedure, hereinafter referred to as the Cr.P.C., after obtaining

leave of the court, challenging the legality and correctness of the judgment

of the Judicial First Class Magistrate, Ramankary in C.C.No.590/2008.

That case had originated on a complaint preferred by the appellant alleging

offence punishable under Section 138 of the Negotiable Instruments Act,

1881, hereinafter referred to as the Act. The appellant alleged that in

consideration of a sum of Rs.50,000/- borrowed by the 1 st respondent from

him on 22.05.2008 at his residence, cheque No.0835927 drawn on the

State Bank of India, Kainady branch dated 22.06.2008 was issued to him.

He presented the cheque for collection through Kavalam branch of the

Federal Bank, but it returned due to insufficiency of funds. Thereafter, the

1st respondent was alerted through a lawyer notice dated 26.08.2008,

which was returned unserved. Thereafter the complaint was preferred on

04.10.2008 alleging offence punishable under Section 138 of the Act.

2. The 1st respondent accused entered appearance on summons.

After completing all the formalities when particulars of the offence were

read over and explained, he pleaded not guilty. Two witnesses were

examined from the side of the complainant as PWs 1 and 2. PW1 is the

appellant himself and PW2 is an independent witness who had witnessed

the transaction. When examined under Section 313(1)(b) Cr.P.C., the 1 st

respondent denied the transaction. He filed a statement also. According

to him, he is the Secretary of the Cherukara Karshaka Swasraya Sangham,

which is working under the Gandhi Smaraka Kendram, Mararikulam.

From a sum of Rs.1,10,000/- sanctioned by Mararikulam branch of the

Federal Bank as a loan to the Sangham, he filed an application before the

Sangham for granting a loan of Rs.50,000/- towards the educational

expense of his daughter and for fish farming. But he was not entitled to

apply for a loan exceeding Rs.12,000/-. Thus the Sangham took a decision

in the presence of Adv. P.P. Madhusoodanan, Chairman of the Gandhi

Smaraka Kendram Kuttanad Subcentre and Santhosh Santhi, President of

the Cherukara Swasraya Sangham. That decision was taken in the

residence of one P.G. Ramakrishnan of Cherukara, Punnassery. Then it

was agreed that if the 1st respondent furnishes a security cheque, a loan as

requested can be sanctioned to him. On that basis, after handing over the

Ext.P1 cheque in blank form to the said Santhosh Santhi, the loan was

availed by him. As his cultivation had ended in loss, he could not repay

the amount except Rs.12,500/- in two instalments. Later some disputes

arose between himself and President of the Sangham, consequent to which

the President handed over the cheque to the complainant and made him to

present the same for collection.

3. Thereafter two witnesses were examined on the side of the 1 st

respondent as DWs 1 and 2. Exts.D1 to D6 were also marked. After

hearing counsel on both sides, by the impugned judgment, the learned

Magistrate found him not guilty and acquitted under Section 255(1)

Cr.P.C. The complainant assails that finding before this Court after

obtaining leave under Section 378(4) of Cr.P.C.

4. I heard learned counsel on both sides.

5. The counsel for the appellant submitted that the learned

Magistrate has failed in appreciating the contentions of the parties in

proper perspective. It cannot be believed that a society registered under

the Co-operative Societies Act had procured a blank cheque while

sanctioning loan to its member, that later it was handed over to a stranger

for initiating criminal prosecution. The subject cheque has nothing to do

with the loan transaction referred to by the 1 st respondent. It is also

difficult to believe that such a document has been misused by the

appellant. The Ext.D2 minutes relied on by the trial court is a concocted

document. The 1st respondent did not even receive the notice sent at the

instance of the appellant, after the dishonour of the cheque. Now, all

documents and evidence have been placed on experimental basis, to defeat

the legitimate claim of the appellant. The counsel thus canvassed for

reversing the finding and convicting the 1st respondent.

6. On the other hand, the learned counsel for the 1 st respondent

defended the finding of the trial court.

7. Admittedly, the Ext.P1 cheque bears the signature of the 1 st

respondent. But the transaction as claimed by the appellant is denied by

him. He has disputed the claim of the appellant. According to him, no

such transaction had taken place between himself and the appellant. He

wants to make the court believe that the appellant is a stranger, that the

Ext.P1 was handed over to PW2, a close associate of the appellant, in the

transaction evidenced by Ext.D2, in connection with the loan he had

availed from the Cherukara Karshaka Swasraya Sangham. At that time, he

was the Secretary of the Sangham; in order to avail a loan of Rs.50,000/-

for his personal requirements, he had to hand over a cheque as decided in

the meeting of the Sangham. It is duly recorded in the minutes.

According to him, the Ext.P1 is not supported by consideration, and was

not executed or issued in discharge of a legally enforceable liability.

8. The appellant gave evidence as PW1. According to him, the

amount was passed by the 1st respondent on 25.05.2008 at his residence in

the presence of PW2 Santhosh Santhi, the 1 st respondent and his daughter.

The 1st respondent was introduced to him by PW2. He denied the version

of the 1st respondent. PW2 supported the version of the appellant. DW1 is

a member of the executive committee of the Sangham, who produced and

proved the Ext.D2 minutes to indicate that the subject cheque was handed

over to PW2 on 20.10.2005 for the purpose of availing a loan of

Rs.50,000/- by the 1st respondent, who was the Secretary of the Sangham.

DW2 is the Secretary of the Gandhi Seva Swasraya Kendram. He is

aware of the loan transaction of Rs.1,10,000/- between the Gandhi Seva

Swasraya Kendram and its subordinate body, the Karshaka Sangham.

9. The trial court, after considering the rival contentions and

evidence, came to the conclusion that the defence version is more probable

and that there is lack of consistency in the case of the appellant, that there

are discrepancies in his case. Ultimately, disbelieving the case of the

appellant, the court entered the finding of acquittal.

10. It is trite that Section 138 of the Act has three ingredients.

Firstly, that must be a legally enforceable debt; secondly, that the cheque

was drawn from the account of the borrower for discharge, in whole or

part, of any debt or liability which pre-supposes a legally enforceable debt

and thirdly, that the cheque was returned due to insufficiency of funds.

Section 139 of the Act raises a presumption with regard to the existence of

the second aspect of it. Once the execution of the instrument is admitted

or proved, the presumption comes into play that it is supported by

consideration. It is a rebuttable presumption. It is for the appellant to

prove that the document is duly executed by the 1 st respondent. If only the

initial burden is discharged by him, the onus will shift to the 1 st

respondent; on shifting the onus, if he does not rebut the presumption, the

court is bound to uphold the contention of the appellant.

11. The trial court is required to start with the statutory

presumption until the contrary is proved that the cheque was issued or

drawn for consideration and that the complainant had received it for the

discharge of existing debt or liablity. If only the execution of the

document is admitted or proved, he will be able to draw the presumption

as provided under Sections 118(a) and 139 of the Act.

12. Here, the 1st respondent has disputed the execution of the

document. His admission confines to the extent that the instrument

belonged to him and that he had merely signed the same and handed it

over in a blank form for a different purpose. In order to buttress the

contention he has produced among other things the Ext.D2 minutes book

as well as the oral testimony of DWs 1 and 2. He has also disputed the

genuineness of the version of PWs 1 and 2.

13. After revisiting the evidence, this Court also do not find

overwhelming reasons to strike a different note. As noticed earlier, the

presumption in favour of the appellant is available only if the execution of

the document is admitted or proved by the drawer of the cheque. Here, he

has denied the same and has stated that the document was handed over to

PW2 in a different circumstance, for the purpose of availing loan from the

Cherukara Karshaka Swasraya Sangham. The degree of proof adduced by

the 1st respondent in such a setting is not as rigorous as that of the

appellant. Merely by preponderance of probabilities, if he is able to

dislodge the case of the appellant, he is entitled to succeed.

14. The appellant does not have a consistent case as to when the

transaction had taken place. As rightly noticed by the trial court, the

complaint does not contain the necessary details. PWs 1 and 2 have given

different dates on which the alleged transaction had taken place.

Similarly, there is no uniformity with regard to the amount arranged by the

appellant, the relationship between the parties, etc. While the appellant

wanted to make the court believe that Rs.20,000/- was the sum repaid by

PW2, according to PW2, he had entrusted Rs.20,000/- to the appellant for

lending a total sum of Rs.50,000/- to the 1 st respondent. Whatever it may

be, there are reasons to think that PW2 is a close associate of the appellant

and both are very much interested in the outcome of the case.

15. Even though the learned counsel for the appellant said that the

Cherukara Karshaka Swasraya Sangham is a registered Society under the

Co-operative Societies Act, there is nothing on record to support the

version. Whatever it may be, it is hard to believe that such a minutes was

was created, marked as Ext.D2, for the purpose of defeating the appellant.

True that the claim of DW1 as to how the document came into the custody

of a person other than the Secretary etc. is not convincing. Still, the Ext.D2

minutes give a long hand to the 1st respondent which virtually disrupts the

appellant's case.

16. In short, the appellant could not make out a case that the

Ext.P1 was executed and issued by the 1st respondent in discharge of a

legally enforceable liability as claimed by him. He is not entitled to draw

a presumption as provided under Section 139 of the Act. There are no

valid reasons to interfere with the judgment of the trial court.

The appeal is dismissed.

Sd/-

K. HARIPAL JUDGE okb/09.03.21

//True copy// P.S. to Judge