George Joseph vs State Of Kerala
2023 Latest Caselaw 8789 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
      MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
                       CRL.MC NO. 2718 OF 2023
AGAINST THE ORDER/JUDGMENT ST 5/2019 OF JUDICIAL MAGISTRATE OF FIRST
                            CLASS II, PALA

PETITIONER/ACCUSED :-

           GEORGE JOSEPH
           AGED 55 YEARS
           THYLAMANAL HOUSE ARUVITHURA P.O
           ERATTUPETTA KOTTAYAM DISTRICT, PIN - 686122

           BY ADVS.
           SHAJI THOMAS
           MOHAN PULIKKAL
           JEN JAISON

RESPONDENTS/STATE & COMPLAINANT :-

     1     STATE OF KERALA
           REPRESENTED BY ITS PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA ERNAKULAM, PIN - 682031

     2     MIDHUN SCARIA
           THUDIYANPLACKAL HOUSE EDAPPADY P.O
           BHARANANGANAM, KOTTAYAM DISTRICT, PIN - 686578

           BY ADVS.
           SRI.GEORGEKUTTY MATHEW

           SMT. NEEMA T V, SR. PP


THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.08.2023,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 2718 OF 2023             2




                                        ORDER

This petition is filed under Section 482 of the Cr. P.C seeking to

quash the order passed by the learned Judicial Magistrate of First

Class-II, Pala in CMP No.112/2022. The said application was filed by the

accused to send Ext.P1 cheque for comparison of the handwriting

contained in Ext.P1 cheque with the handwriting of the accused. The

learned Magistrate, by impugned order, rejected the application. The said

order is under challenge.

2. Shorts facts as under:-

The party respondent is the complainant in S.T. No.5 of 2019

on the file of the Judicial Magistrate of First Class-II, Pala. The said

complaint was filed under Section 138 of the Negotiable Instruments Act.

The allegation in the complaint is that a sum of Rs. 6 lakhs was handed

over to the accused for sending his son abroad. The said amount was to

be repaid in five months. After the expiry of five months, when the

amount was demanded back, the accused is alleged to have gone to the

residential home of the complainant and thereafter handed over the

cheque after filling up the cheque and affixing his signature.

3. The contention of the accused is that he had not borrowed

any amount from the complainant and also that he had not handed over

the cheque. While cross-examining the complainant, the suggestion put

was the account on which the cheque was drawn was in the joint name

of the accused and his son. The son of the accused had borrowed a sum

of Rs. 50,000/- and handed over the cheque kept at home and signed by

the accused. It was his case that the entries in the cheque other than

the signature were not put by him. When the complainant was

cross-examined, he admitted that the accused had come to his residence

and had filled up the date and amount and thereafter affixed the

signature in his presence. It is in order to controvert the said portion of

the evidence that the application was filed for forwarding the cheque to

the handwriting expert.

4. I have heard Sri. Shaji Thomas, the learned counsel

appearing for the petitioner and Sri. Georgekutty Mathew, the learned

counsel appearing for the party respondent.

5. The copy of the deposition of the complainant has been

placed before this Court. I find that to a definite question put by the

learned counsel appearing for the accused, the complainant had stated

that the entries in Ext.P1 cheque, which include the date, the amount as

well as the signature, were affixed by the accused on 10.7.2017. The

specific contention of the petitioner is that the entries and the amount in

the cheque were not written by him. It is in order to controvert the

evidence of the complainant that the application was filed to send the

cheque to the handwriting expert.

6. In a proceeding under Section 138 of the Act, the court is

required to consider whether the ingredients of the offence enumerated

under Section 138 of the Act have been met and, if so, whether the

accused was able to rebut the statutory presumptions contemplated

under section 139 of the Act. Under Section 139, a presumption is

raised that the holder of a cheque received the cheque for the discharge,

in whole or part, of any debt or other liability. To rebut this presumption,

facts must be adduced, which on a preponderance of probability (not

beyond reasonable doubt as in the case of criminal offenses) must then

be proved. An accused for discharging the burden of proof placed upon

him under a statute need not examine himself. He may discharge his

burden on the basis of the materials already brought on record. He can

also rely on the materials produced by the complainant to disprove the

existence of a legally enforceable debt or liability or the transaction itself.

It needs to be remembered that the existence of the legally enforceable

recoverable debt is not a matter of presumption under Section 139 of the

Act. It merely raises a presumption in favor of a holder of a cheque that

the same has been issued for the discharge of any debt or other liability.

7. The learned Magistrate, relying on the observations in Bir

Singh (supra) and Oriental Bank of Commerce v. Prabodh Kumar Tewari

(2022 (5) KHC 560], has concluded that mere filling up of a cheque by

payee would not invalidate the cheque. The learned Magistrate was of

the view that if a blank cheque leaf voluntarily signed by the accused is

handed over, the presumption under Section 139 of the NI Act would

apply. The judgment in the above case was rendered in a different fact

scenario. In the case on hand, the case of the complainant is not that a

blank cheque leaf, voluntarily signed by the accused, was handed over in

discharge of the debt. On the other hand, the assertions of the

complainant in his evidence is being strongly disputed by the accused,

and it is with a view to controvert the assertions in the evidence that the

application was filed to send the cheque to the handwriting expert.

In that view of the matter, I am of the considered opinion that

the order passed by the learned magistrate cannot be sustained under

law. Annexure-AI order will stand quashed. C.M.P.No. 112 of 2022 in

S.T.No. 5/2019 will stand allowed. Necessary steps shall be taken to get

the handwriting compared by an expert.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE SMA

APPENDIX OF CRL.MC 2718/2023

PETITIONER ANNEXURES :-

Annexure A1 CERTIFIED COPY OF THE ORDER DATED 06.03.2023 IN C.M.P NO. 112/2022 IN S.T NO. 5/2019 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE- II, PALA

Annexure A2 A TRUE PHOTOCOPY OF THE DEPOSITION OF THE 2ND RESPONDENT IN S.T NO. 5/2019 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE- II, PALA