Yesodharan V vs S.Meena Varghese
2021 Latest Caselaw 20638 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
         TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                          CRL.A NO. 714 OF 2006
  AGAINST THE JUDGMENT DATED 23-01-2006 IN CC 311/2004 OF JUDICIAL
             MAGISTRATE OF FIRST CLASS -III, PUNALUR, KOLLAM


APPELLANT/COMPLAINANT:

             YESODHARAN V.
             S/O VELU, KARTHIKA BHAVAN,
             MANIYAR, PUNALUR, KOLLAM DISTRICT.

             BY ADV SRI.B.MOHANLAL



RESPONDENTS/ACCUSED & STATE:

     1       S.MEENA VARGHESE
             D/O RAJAN, PUKKADIYIL HOUSE,
             PERACHUVADU, PUTHUPALLY P.O., KOTTAYAM.

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

             BY ADV. ENOCH DAVID SIMON JOEL


OTHER PRESENT:

             R2 ADV.SRI RENJIT GEORGE, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.714/2006               -2-

                               JUDGMENT

This appeal has been filed by the complainant in C.C No.311/2004, after

obtaining leave of this court, challenging the order acquitting the 1 st

respondent/accused in a prosecution under Section 138 of Negotiable

Instruments Act. It is the case of the appellant/complainant that the 1 st

respondent/accused had borrowed a sum of Rs.1,00,000/- from him on 04-12-

2003. It is his case that on the same day the 1 st respondent/accused issued a

cheque bearing the date 10-03-2002 for a sum of Rs.1,00,000/- and that the

cheque was presented for collection by him on 11-03-2002. The cheque was

returned with the endorsement 'account in question has been closed'. According

to the complainant the account had been closed by the 1 st respondent/accused

surreptitiously and that he had been made to believe that the cheque would be

honored on presentation. The complaint was filed after complying with the

statutory formalities.

2. The appellant/complainant was examined as PW1. In cross-

examination he stated that he knows the husband of the 1 st respondent/accused

though they are not very close to each other. He admitted that the husband of

the 1st respondent stays about 6 Kms away from the residence of the

complainant. He stated that on 04-12-2003, the 1 st respondent/accused had

visited his house along with her father and her brother and asked for a loan of

Rs.1,00,000/- which was to be repaid on 10-12-2003. He stated that he

immediately gave Rs.1,00,000/- to the 1 st respondent/accused and she had

issued Ext.P1 cheque dated 10-12-2003 on the same day.

3. The 1st respondent/accused produced two documents which were

marked as Ext.D1 & D2. Exhibit D1 is the First Information Report in Crime

No.180/2001 of Eroor Police Station of Kollam District together with the First

Information Statement given by the 1 st respondent/accused against her husband

and his relatives alleging commission of offence under Section 498A of the

Indian Penal Code where she has a specific case that her husband had harassed

her and her family for dowry and had also misappropriated cheque leaves from

her. Exhibit D2 is the final report in Crime No.180/2001 against the husband

and relatives of the 1st respondent/accused in this case.

4. The learned Magistrate on a consideration of the matter found that

the entire story put forth by the complainant was totally unbelievable and took

into consideration the contents of Exts.D1 & D2 to hold that Ext.P1 cheque

would must have came into the possession of the appellant/complainant

through the husband of the 1st respondent/accused. Accordingly the learned

Magistrate found that the appellant/complainant had not succeeded in proving

the existence of a legally enforceable debt in discharge of which Ext.P1 cheque

was issued by the 1st respondent/accused.

5. The learned counsel for the appellant would submit that the learned

Magistrate erred in law in acquitting the 1 st respondent/ accused in this case. He

submits that the 1st respondent/accused had not tendered any evidence to

suggest that Ext.P1 cheque had not been issued in discharge of a debt owed to

the appellant/complainant. He submits that the appellant/complainant is

entitled to the benefit of the statutory presumption under Section 139 of the

Negotiable Instruments Act and this presumption though rebuttable has not

been rebutted in any manner by the 1st respondent/accused.

6. The learned counsel for the 1st respondent/accused would contend

that the contents of Exts.D1 & D2 documents were sufficient to prove that the

cheque had come into the possession of the appellant/complainant through the

husband of the 1st respondent/accused with whom she has a very strained

relationship. She submits that Ext.P1 cheque is bears the date 10-12-2003. With

reference to Ext.P1 it is submitted that as early as on 10-10-2001 she had given a

statement in Crime No.180/2001 of Eroor Police Station, Kollam District where

she had specifically stated that her husband had misappropriated cheque leaves

from her. She would submit that though the appellant/complainant was entitled

to the statutory presumption under Section 139, 1 st respondent/accused had

succeeded in rebutting that presumption and thereafter it was the responsibility

of the appellant/complainant to prove the existence of a legal enforceable debt in

discharge of which Ext.P1 cheque was issued. She submits that the

appellant/complainant had miserably failed to prove the existence of a legally

enforceable debt in discharge of which Ext.P1 cheque was issued.

7. Having heard learned counsel for the parties and having perused the

records, I am of the opinion that the appellant/complainant has not made out a

case for interference with the judgment in C.C No.311/2004 on the file of the

Judicial First Class Magistrate Court-III, Punalur. The entire genesis of the

transaction alleged by the appellant/complainant is suspicious. He stated in the

box that he was not very well acquainted with the husband of the 1 st

respondent/accused. However, on his own showing merely on the request by the

1st respondent/accused who allegedly came with her father and her brother the

appellant/complainant lent a sum of Rs.1,00,000/- to her in discharge of which

Ext.P1 cheque was allegedly issued. The appellant/complainant does not have a

case that he was acquainted with or on friendly terms with the 1 st

respondent/accused other than through her husband. It is quite unbelievable

that the appellant/complainant would have lent a sum of Rs.1,00,000/- to such

a person on the mere asking. That apart the contents of Ext.D1 clearly shows

that the 1st respondent/accused was not on good terms with her husband and

that she had complained as early as in the year 2001 that her husband who

admittedly lives 6 Kms away from the residence of the appellant/complainant

had misappropriated cheques from her. I am therefore of the view that this is a

case where the 1st respondent/accused had succeeded in rebutting the statutory

presumption under Section 138 of the Negotiable Instruments Act and the

appellant/complainant had failed to lead any evidence thereafter to show the

existence of a genuine transaction. It is settled law that a prosecution under

Section 138 will not lie unless the complainant is able to establish that the

subject cheque was issued in discharge of a legally enforceable debt. I am

therefore of the view that appeal lacks merit and is liable to be dismissed. In the

result this appeal is dismissed.

Sd/-

GOPINATH P.

JUDGE

AMG