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2020 DIGILAW 166 (KER)

Abdulkhader K. P. v. C. Pankajakshan Nambiar

2020-02-07

T.V.ANILKUMAR

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JUDGMENT : T.V. Anilkumar, J. Complainant in S.T.No.74/2005 before Judicial First Class Magistrate, Payyannur, challenges order of acquittal of accused in the private complaint filed by him under Section 138 of the Negotiable Instruments Act, 1881(for short, the N.I.Act). 2. Complainant's case is that the accused in partial discharge his gross liability for an amount of Rs.4,50,000/- issued Ext.P1 cheque dated 05.12.2004 in favour of him drawn on Cheruthazham Service Co-operative Bank Limited, Mundoor branch and on presentment of the cheque, it was dishonoured for 'want of sufficient funds' at the credit of the accused. Accused did not reply to the notice sent by complainant demanding discharge of debt and therefore, complaint was filed for offence punishable under Section 138 of the N.I.Act, after complying with all formalities required by law. 3. On accused denying charge, the court below examined the appellant/complainant as PW1 and received Exts.P1 to P5 in evidence on his side. The accused in his answers given under Section 313 of the Code of Criminal Procedure, 1973(for short 'the Cr.P.C.) said that he did not have any monetary transaction with the appellant nor he issued Ext.P1 cash cheque to the latter. According to him, Ext.P1 which is a blank cheque was given to complainant's father Moosa Haji, as security for rent arrears of a building after it was taken on rent from Sri. Haji. The building was taken on rent for conducting Ayurvedic pharmaceuticals in his wife's name and therefore, a blank cheque drawn by his wife was also given to Sri. Haji. When accused's relationship with appellant fell out, the latter managed to obtain Ext.P1 cheque from Sri. Haji and filed this false complaint. In support of his case, he examined his Driver as DW1. 4. The court below after hearing both sides held that since Ext.P1 is a cash/bearer cheque, the appellant was to discharge heavy burden of showing that the cheque came to his possession for consideration and therefore, he is a holder in due course. According to the court below, this burden was not discharged. It was held that the transaction connecting appellant with the accused was not satisfactorily proved and therefore presumption of consideration ordinarily available to a cheque cannot apply to Ext.P1. In any view of the matter, according to the court below, evidence given by PW1 required corroboration and in the absence of independent evidence, the complainant's case is doubtful. It was held that the transaction connecting appellant with the accused was not satisfactorily proved and therefore presumption of consideration ordinarily available to a cheque cannot apply to Ext.P1. In any view of the matter, according to the court below, evidence given by PW1 required corroboration and in the absence of independent evidence, the complainant's case is doubtful. The court below also remarked that material particulars as regards the date of transaction and date and place of issue of cheque were also not pleaded by the complainant and these defects would certainly tell upon the veracity of the prosecution case. 5. The contention advanced in this appeal by the learned counsel for the appellant is that the evidence on record was misread by the court below and the transaction as well as consideration for Ext.P1 cheque was sufficiently proved by the appellant's testimony as well as circumstances on record. It was further contended that there is apparent contradiction between the defence set up in the statement given under Section 313 of the Cr.P.C. and the evidence adduced through defence witness examined as DW1 and this contradiction was not taken note of by the court below while disbelieving appellant's evidence. It was submitted that notwithstanding Ext.P1 being a bearer cheque, the appellant succeeded in proving that he is the holder in due course being entitled to initiate the prosecution against the accused and further that the cheque was issued in discharge of legally enforceable debt. 6. On the other hand, the learned counsel for the first respondent/accused supported the impugned order of acquittal and contended that the order did not call for any interference. It was submitted that the court below examined the evidence meticulously and rightly found that the defence version alone was probable. 7. This appeal being a challenge assailing an order of acquittal, the sole question is whether the impugned order of the court below is in any way perverse, absurd or unreasonable, even assuming that a different view could have been taken by the trial court on the basis of evidence and circumstances on record. 8. The accused did not dispute his signature in Ext.P1 which is a cash/bearer cheque. He disputes that cheque was not delivered by him to the appellant but it was in fact, given to his father, Moosa Haji. 8. The accused did not dispute his signature in Ext.P1 which is a cash/bearer cheque. He disputes that cheque was not delivered by him to the appellant but it was in fact, given to his father, Moosa Haji. According to him, Ext.P1 at the time of issue was only a blank cheque, which later came to the unlawful possession of appellant from his father, Haji. 9. The evidence that emerges from the testimony of PW1 is that accused incurred a gross monetary liability for an amount Rs.4,50,000/- and in partial discharge of the liability, Ext.P1 cheque dated 05.12.2004 was issued in his name. There is no dispute on the part of the accused that he did not have adequate fund in his credit for honouring the cheque or that the complaint was filed by the appellant without complying with the statutory formalities required by Section 138 read with Section 142 of the N.I. Act. 10. The two essential questions that call for consideration in this appeal are (1) whether possession of Ext.P1 cheque with appellant is lawful and (2) it is supported by consideration. 11. Under Section 142 of the N.I. Act, a person competent to prosecute the drawer of a cheque must either be a payee or a holder in due course. Appellant is admittedly not a payee, since Ext.P1 is a cash cheque which does not contain the name of the appellant. Appellant could certainly be shown to be a holder in due course provided there is evidence brought forth to establish that Ext.P1 came to his possession in lawful manner and it was issued for consideration. The ordinary presumption of consideration under Section 139 of the N.I. Act cannot be imported to Ext.P1, until it is proved that the drawer had issued the cheque in favour of the appellant. It is in this context, the evidence as regards the transaction creating debt or liability between parties becomes relevant and significant. 12. While appellant testified that Ext.P1 was issued in his name by the accused, the latter examined his Driver-DW.1 seeking to prove that Ext.P1 was issued to appellant's father, Sri. Moosa Haji as blank cheque towards security for discharge of rent arrears. Thus, there are two rival versions between parties as regards delivery of cheque as well as consideration. 13. Parties admit that appellant's father, Sri. Moosa Haji as blank cheque towards security for discharge of rent arrears. Thus, there are two rival versions between parties as regards delivery of cheque as well as consideration. 13. Parties admit that appellant's father, Sri. Haji owned a building at Kochupuram which he rented out to the accused for conducting Pankaj Pharmaceuticals in the name of his wife. The appellant decided to join the business in manufacture of Ayurveda and work as a partner of the Pharmaceuticals. It is also an admitted fact that the shop was opened on 11.11.2003. The appellant's testimony shows that he wished to make investment in the Pharmaceuticals business and towards initial investment, he paid an amount of Rs.50,000/- to the accused much before the date of inauguration. His evidence further shows that on other various occasions, he invested more amounts and his share in the partnership business amounted to a gross sum of Rs.4,50,000/-. According to him, he wanted the accused to give him authority to sign the cheques for the Institution and also part with chemical formula for manufacture of Ayurveda medicines. When accused hesitated, their relationship fell out and appellant insisted the accused to discharge his liability whereupon Ext.P1 cheque was issued in partial discharge of liability. 14. On the other hand, DW1 gave a different version of the circumstances under which Ext.P1 cheque was given. He too admits that there was an agreement between accused and appellant that the latter would be made a partner of the business provided he made investment in the business. According to DW1, to his knowledge, no investment was made and accused did not incur any monetary liability to the appellant. There was delay in opening the shop and accused happened to default payment of rent. When it came to the notice of Sri. Moosa Haji, who is settled in Singapore, he came down to India and insisted accused to clear the rent arrears. He also insisted the accused to handover blank cheques and signed blank stamp papers towards security for future arrears of rent also. According to DW1, two blank cheques; one drawn by the accused and other by his wife were accordingly given to Sri. Moosa Haji, which later came to be possessed by the appellant in quite unlawful manner. 15. He also insisted the accused to handover blank cheques and signed blank stamp papers towards security for future arrears of rent also. According to DW1, two blank cheques; one drawn by the accused and other by his wife were accordingly given to Sri. Moosa Haji, which later came to be possessed by the appellant in quite unlawful manner. 15. The court below after weighing the probabilities of the rival versions advanced by the parties was inclined to hold that the case put forward by the appellant is open to doubt. I have also similar impression and do not therefore find that the view taken by the court below is in any way contrary to the evidence or perverse and unreasonable. I do not find any contradiction between the case set up by accused in his answers given under Section 313 of the Cr.P.C. and the testimony given by DW1. 16. On meticulous reading of the versions, no incongruity could be noticed at all. If as a matter of fact appellant spent a sum of Rs.4,50,000/- for development of the business in Pharmaceuticals, some evidence corroborating his oral evidence could have been produced. He does not offer any explanation as to why he failed to bring forth for such evidence. He could not give the various dates on which the alleged investments were made. Unless there is convincing evidence as regards investment, issue of Ext.P1 in discharge of partial liability could never arise. The appellant was not able to speak the date and place of issue of cheque; but on the other hand, the accused has a definite case that blank cheques were issued at the house of Moosa Haji. Appellant could not also state the source from where he raised the amount for the purported investment in the business. There is nothing in the evidence of DW1 suggesting that appellant made any investment in the business and held any share as a partner. 17. On reconsideration of evidence, I am also of the same view of the court below that in the absence of corroborative evidence proving the transaction and monetary liability alleged to have been incurred by the accused, the case put forward by appellant cannot be believed. The probability is more in favour of the case of the accused that Ext.P1 cheque was given to appellant's father. The probability is more in favour of the case of the accused that Ext.P1 cheque was given to appellant's father. It appears from Ext.P1 cheque that though same colour of the ink was used, the entries in the cheque were made with two different pens. This is also one of the circumstances to infer that Ext.P1 might have been issued as blank cheque. I, therefore, hold agreeing with the court below that appellant failed to prove that he is a holder in due course. For these reasons, I find that impugned order of acquittal does not worth any interference. It is only liable to be confirmed. In the result, the appeal fails and it is dismissed. All pending interlocutory applications will stand closed.