K.Uthaman vs V.Nagamma
2021 Latest Caselaw 9848 Ker

             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

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

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

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

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

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