Kerala High Court
Johney Joseph vs George Joseph on 6 November, 2024
CRL.A NO. 939 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
CRL.A NO. 939 OF 2007
AGAINST THE JUDGMENT DATED IN ST NO.102 OF 2006 OF
ADDITIONAL SESSIONS COURT II, THODUPUZHA
APPELLANT/COMPLAINANT:
JOHNEY JOSEPH, S/O JOSEPH,
KALLARACKKAL HOUSE,KODUVELIKKARA,, KODIKULAM
VILLAGE,THODUPUZHA TALUK.
BY ADV S.RAJEEV
RESPONDENTS/ACCUSED & STATE:
1 GEORGE JOSEPH, KALAPURACKAL HOUSE,
KODUVELI P.O.,KODIKULAM VILLAGE,, THODUPUZHA TALUK.
2 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COUT OF KERALA,, ERNAKULAM.
BY ADV ATHUL V. VADAKKEDOM
OTHER PRESENT:
PP-SMT.SEENA C.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 939 OF 2007
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J U D G M E N T
This appeal is at the instance of the complainant in
S.T. No. 102 of 2006, on the file of Judicial First Class Magistrate
Court-I Thodupuzha, challenging acquittal of the accused, under
Section 138 of the Negotiable Instruments Act (for short, 'the NI
Act'), vide judgment dated 01.02.2007.
2. The case of the complainant was that, the accused
borrowed amounts from him on six different occasions, totalling
Rs.8 lakh, and when he demanded that amount, the accused issued
Ext.P1 cheque dated 15.10.2005, assuring him that it would be
honoured on presentation before the bank. But it was dishonoured
for the reason 'insufficient funds'. Though registered lawyer notice
was sent to the accused, the accused refused to accept the same.
Since the amount was not repaid, he filed the complaint.
3. After taking cognizance, the accused appeared before the
trial court, and particulars of offence were read over and explained,
to which he pleaded not guilty, and claimed to be tried. PW1 was
examined and Exts.P1 to P5 were marked from the side of the
complainant to prove his case. On closure of complainant's
evidence, the accused was questioned under section 313 of Cr.P.C.
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He denied all the incriminating circumstances brought on record,
but no defence evidence was adduced.
4. Heard learned counsel for the appellant/complainant and
learned counsel for the 1st respondent/accused.
5. The testimony of PW1- the complainant is to the effect
that, the accused borrowed Rs.30,000/- on 20.02.2004 agreeing to
pay interest in every 3 months. Though he demanded interest, it
was not paid by the accused. Even then, he again advanced
Rs.1,10,000/- to the accused on 30.11.2004. Even though the
accused failed to pay the interest as agreed, the complainant again
advanced Rs.50,000/- to him on 14.01.2005, Rs.2,00,000/- on
11.03.2005, Rs.30,000/- on 24.06.2005, and Rs.3,80,000/- on
06.08.2005. As rightly pointed out by the trial court, no prudent
man will advance so much of amount to a person, who defaulted
payment of interest even on the first payment, made on
20.02.2004, and continued to advance substantial amounts till
06.08.2005. The case put forward by the accused is that, he took
the rubber plantation of the complainant for slaughter tapping, and
Rs.40,000/- was due to the complainant in that transaction. As a
security for that amount, he had given 4 blank cheques to the
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complainant, and Ext.P1 is one among them. Misusing one of the
cheques entrusted with the complainant, he filed a false complaint
against him. On going through Ext.P1 cheque, it could be seen
that there is overwriting in the date, and the year also is
overwritten. So, learned counsel for the 1st respondent would say
that, the accused was able to rebut the presumptions available to
the complainant under Sections 118 and 139 of the NI Act, even by
relying on the evidence adduced by the complainant.
6. The testimony of PW1 that though the accused defaulted
payment of interest as agreed, he continued to advance huge
amounts, for over a period of 1 1⁄2 years, is difficult to be
swallowed without a pinch of salt. In order to rebut the
presumptions available in favour of the complainant, the accused
need not adduce positive evidence. When he is able to pick holes
in the case of the complainant, by preponderance of probabilities,
even relying on the evidence of the complainant himself, the
presumptions under Sections 118 and 139 of the NI Act will
disappear, and then it will be the burden of the complainant to
prove his case without the aid of the presumptions. (Reliance
placed on Yahiya P v. State of Kerala [2024 (1) KHC 339]).
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The accused succeeded in rebutting the presumptions available in
favour of the complainant, and his case appears to be more
probable.
7. Learned counsel for the accused would contend that, no
notice as envisaged under Section 138(b) of the NI Act was served
on him. Ext.P5 is the notice which was returned with the
endorsement 'unclaimed. Returned to sender'. Ext.P3 is the copy
of lawyer notice sent by the complainant, and it says " notice
issued to George Joseph, Kalapurackal house, Koduveli P.O.,
Thodupuzha, now residing at the rented house of Sasi,
Thachuparambil house, Opposite Vimala Public School, Thodupuzha
East P.O". PW1 - the complainant deposed before court that, when
he sent Ext.P3 notice, the accused was residing in the rented
house, opposite to Vimala Public School, Thodupuzha, and he had
gone to that house also. He further stated that, the accused had
shown that house to him even prior to the sending of notice. So,
obviously, the complainant was aware of the fact that, at the time
of sending Ext.P3 notice, the accused was residing in the rented
house of Sasi, opposite to Vimala Public School, Thodupuzha. But
Ext.P3 notice was not sent in that address. So, the notice sent to
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the accused in his Tharavadu address, could not be taken as proper
notice since the complainant was aware of the fact that, the
accused was not residing in that house during the period of sending
the notice. So, no notice, as envisaged under Section 138(b) of the
NI Act, was sent to the accused, in his correct address.
8. Learned trial court appreciated the facts and evidence in its
correct perspective and this Court finds no reason to interfere with
the impugned judgment of acquittal of the accused.
The appeal fails, and hence dismissed.
Sd/-
SOPHY THOMAS
JUDGE
RMV
