Kerala High Court
P.Hamsa vs Shanavas on 12 June, 2024
Crl. Appeal No. 1382/2007 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
CRL.A NO. 1382 OF 2007
JUDGMENT DATED 09.03.2005 IN CC NO.102 OF 1998 OF JUDICIAL MAGISTRATE OF
FIRST CLASS - I, OTTAPPALAM
APPELLANT/COMPLAINANT:
P.HAMSA, S/O. ATHAN,
POOLAKKAL VEED, AKALUR,, BY POWER OF ATTORNEY HOLDER,
MUHAMMED K., S/O MAMMI, KANKADIYIL VEED,, CHUNANGAD AMSOM
AND DESOM, OTTAPALAM TALUK.
BY ADV SRI.K.A.JALEEL
RESPONDENTS/ACCUSED & STATE:
1 SHANAVAS, S/O. UBAID,
PALAVILA VEED, P.O.NEDUNKANDAM,, VARKKALA,
THIRUVANANTHAPURAM DISTRICT.
2 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADVS.
SRI.P.M.RAFIQ
SRI.P.VIJAYA BHANU
SRI. SANAL. P. RAJ - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2024, THE
COURT ON 12.06.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 1382/2007 :2:
JOHNSON JOHN, J.
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Crl. Appeal No. 1382 of 2007
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Dated this the 12th day of June, 2024.
JUDGMENT
This appeal is filed against the judgment dated 09.03.2005 in
C.C. No. 102 of 1998 on the file of the Judicial First Class Magistrate,
Ottapalam challenging the acquittal of the accused in a complaint
alleging the offence under Section 138 of the Negotiable Instruments
Act, 1881 (for short 'NI Act') under Section 255(1) Cr.P.C .
2. The complainant is the appellant and the complaint was filed
on the allegation that the accused issued a cheque for Rs.6,00,000/-
dated 22.09.1997 for discharging the liability towards the
complainant and when the complainant presented the cheque for
collection, the same was dishonoured due to insufficiency of funds in
the account of the accused and in spite of issuance of statutory
notice, the accused failed to pay the cheque amount.
3. In the trial court, the power of attorney holder of the
complainant was examined as PW1 and Exhibits P1 to P8 were
marked. No evidence was adduced from the side of the accused.
4. After considering the evidence on record and hearing both
sides, the trial court found that PW1, the power of attorney holder of
the complainant, has no direct knowledge regarding the alleged
transaction and that the complainant has not succeeded in proving
the offence under Section 138 of the NI Act against the accused.
5. Heard Smt. Shifana K.S., representing the learned counsel
for the appellant on record, Sri. Ajeesh K. Sasi, the learned counsel
for the first respondent and Sri. Sanal P. Raj, the learned Public
Prosecutor appearing for the second respondent, State of Kerala.
6. The learned counsel for the appellant argued that the
signature in Exhibit P3 cheque is not disputed and in the absence of
any evidence from the side of the accused to rebut the statutory
presumptions, the trial court ought to have found the accused guilty
of the offence under Section 138 of the NI Act. But, the learned
counsel for the accused/first respondent argued that PW1, the power
of attorney holder of the complainant, has categorically admitted in
cross examination that he has no direct knowledge regarding the
alleged transaction between the accused and the complainant and
that the complainant has not adduced any prima facie evidence
regarding the execution and issuance of the cheque and therefore,
there is no reason to interfere with the findings in the impugned
judgment.
7. The averments in the complaint only shows that the accused
issued cheque dated 22.09.1997 for Rs.6,00,000/- in discharge of the
liability towards the complainant and there is no averments in the
complaint regarding the date of execution and issuance of the cheque
or as to the nature and place of transaction between the parties. In
para 2 of the chief affidavit of PW1, the power of attorney holder of
the complainant, it is stated that the accused issued the cheque in
discharge of the amount due to the complainant in a chitty
transaction.
8. However, in cross examination, PW1 categorically admitted
that he has no direct knowledge regarding the transaction and that he
has only hearsay knowledge from the complainant regarding the
alleged transaction. In cross examination, PW1 deposed as follows:
"ഈ കേസിലെ ഇടപാടിനെ കുറിച്ച് വാദി പറഞ്ഞ അറിവ് മാത്രമേ
എനിക്കുള്ളൂ . നേരിട്ട് ഒന്നും അറിയില്ല . കേസ് കൊടുക്കുന്നതിനു മുമ്പ്
വാദി എന്നോട് എല്ലാ കാര്യങ്ങളും പറഞ്ഞു . ആ അറിവ് മാത്രമേ എനിക്ക്
ഇപ്പോഴും ഉള്ളൂ."
Section 60 of the Evidence Act 1872 reads thus:
"60. Oral evidence must be direct. -- Oral evidence must, in all
cases whatever, be direct; that is to say --
if it refers to a fact which could be seen, it must be the evidence of
a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of
a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or
in any other manner, it must be the evidence of a witness who says
he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is
held, it must be the evidence of the person who holds that opinion
on those grounds:
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such opinions
are held, may be proved by the production of such treatises if the
author is dead or cannot be found, or has become incapable of
giving evidence, or cannot be called as a witness without an amount
of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or
condition of any material thing other than a document, the Court
may, if it thinks fit, require the production of such material thing for
its inspection."
9. In Janki Vashdeo v. Indusind Bank [2005 (2) KLT 265
(SC)] the Honourable Supreme Court held that power of attorney
cannot depose for the acts done by the principal and he cannot
depose for principal in respect of matters of which only the principal
can have personal knowledge and in respect of which the principal is
liable to be cross examined. In the said decision, it is also held that
the power of attorney can appear only as a witness in respect of
facts, which are within his personal knowledge.
10. In view of the categorical admission of PW1 in cross
examination that he has no personal knowledge regarding the alleged
transaction between the accused and the complainant and since the
complainant has not chosen to enter the witness box or to examine
any other witness to prove the execution and issuance of the cheque,
I find that the complainant has not adduced prima facie evidence to
attract the statutory presumptions and the contention of the appellant
in this regard cannot be accepted.
11. When the accused was questioned under Section 313
Cr.P.C., he stated that there was no chitty transaction and he has not
conducted any chitty and that he was running Harsha Advertising at
Qatar and there he borrowed Rs.1000 Qatar Riyal from the
complainant and at that time, the complainant obtained his signed
blank cheque and signed stamp paper and even though, he repaid
1000 Qatar Riyal to the complainant, the complainant has not
returned the blank signed cheque and stamp paper and subsequently,
he filed this complaint by misusing the signed blank cheque entrusted
as security.
12. The Honourable Supreme Court in Basalingappa v.
Mudibasappa [(2019) 5 SCC 418] summarised the principles of
law governing presumptions under Sections 118(a) and 139 of the NI
Act in the following manner:
(i) Once the execution of cheque is admitted S.139 of the Act
mandates a presumption that the cheque was for the
discharge of any debt or other liability.
(ii) The presumption under S.139 is a rebuttable presumption
and the onus is on the accused to raise the probable defence.
The standard of proof for rebutting the presumption is that of
preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to
rely on evidence led by him or accused can also rely on the
materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought on record
by the parties but also by reference to the circumstances
upon which they rely.
(iv) That it is not necessary for the accused to come in the
witness box in support of his defence, S.139 imposed an
evidentiary burden and not a persuasive burden.
13. As noticed earlier, in this case, the complainant has not
adduced any prima facie evidence regarding the execution and
issuance of the cheque and therefore, in the absence of any
satisfactory evidence to show that Exhibit P3 cheque is supported by
valid consideration at the time when the same was presented for
collection, I find no reason to interfere with the findings in the
impugned judgment and in that circumstance, I find that this appeal
is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory
applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
