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2004 DIGILAW 252 (KER)

K. Vijayan v. K. K. T. Haridasan

2004-06-11

K.A.ABDUL GAFOOR

body2004
Judgment :- The complaint filed by the appellant alleging offence under Section 138 of the Negotiable Instruments Act ended in acquittal of the respondent. Therefore, this appeal. According to the appellant the respondent borrowed from him an amount of Rs.20,000 with the intervention of P.W.2 and issued Ext.P-1 cheque as well as Ext. P-8 memorandum evidencing drawal of Ext.P-1 cheque. Ext.P-1 cheque when presented to the bank was bounced. Therefore the respondent had committed an offence punishable under section 138. 2. The case set up by the accused was that there was no transaction between himself and the appellant. He had really borrowed only an amount of Rs.10,000 from P.W.2, on the understanding of repayment at the rate of Rs.100 per day on all working days. He remitted 63 installments. A cheque was drawn for Rs.10,000 and given to P.W.2 as security. The repayment started thereafter. It was a blank cheque. At the time of payment of amount, Rs.1,500 was deducted as advance interest. Because of an accident and consequent injury sustained he could not continue the repayment from 64th installments. When he attempted to continue the repayment after discharge from the hospital, P.W.2 did not receive the amount. P.W.2 thereupon instigated his friend, the appellant, handing over one among the two cheques given by him to institute the complaint in question. So the cheque was not supported by the consideration so far as the appellant is concerned. 3. Appreciating the evidence on record and examining the endorsement on Ext.P-1 cheque as well as the contents of Ext.P-8 memorandum, the court below found that the case put forth by the accused was more probable. Accordingly the respondent was acquitted. This is assailed in this appeal. 4. It is submitted by the counsel for the appellant that the presumption available tinder Section 118 as well asunder section 139 of the Negotiable Instruments Act has not been rebutted in this case by the accused, when the signature on the cheque is admitted. Without such rebuttal an acquittal is unsustainable. Further there was evidence, Ext.P-8 memorandum evidencing drawal of cheque Ext. P-1. Thus there is no reason to disbelieve the evidence given by P.W.1 and P.W.2. He further submits that the writing of the name of the complainant in Ext.P-1 cheque was in the handwriting of P.W.2. Without such rebuttal an acquittal is unsustainable. Further there was evidence, Ext.P-8 memorandum evidencing drawal of cheque Ext. P-1. Thus there is no reason to disbelieve the evidence given by P.W.1 and P.W.2. He further submits that the writing of the name of the complainant in Ext.P-1 cheque was in the handwriting of P.W.2. Respondent was styled in the complaint as a building contractor whereas he was really a head load worker as is evidenced by Ext.D-1. When the respondent had subscribed his signature with name in Ext.P-1, there was no reason why he should not have indicated the name of the appellant also in the cheque. Therefore, it is clear that the cheque in question wherein the name of the appellant had been written, admittedly by P.W.2, was really handed over by P.W.2 to the appellant who made use of the same to initiate the proceedings. Thus the probability of the defence case has been duly proved in this case. That is sufficient rebuttal of the presumption available under section 139 of the Negotiable Instruments Act, based on the evidence on record, the counsel submits. 5. Of course Ext.P-1 cheque has been signed by the accused. His name also had been written by the accused. But all other particulars in the cheque had been written by P.W.2. If accused could write his name and subscribe his signature as contained in Ext.P-1, there was no reason why other particulars including date and name of the appellant being not written by the accused himself. When it is proved that it was so written by P.W.2, it is also probable that accused might have given cheque to P.W.2 and not to the appellant. By that itself the probability of the defence case is proved. It is sufficient for the rebuttal of the presumption available. In such circumstances it cannot be taken that the appellant had proved beyond doubt that the cheque was issued to him by the accused. There fore, there arises no question of reversal of acquittal in this appeal. Appeal is dismissed.