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2020 DIGILAW 309 (KER)

SANKARAN NAIR v. STATE OF KERALA

2020-03-11

T.V.ANILKUMAR

body2020
JUDGMENT 1. The complainant in CC No.1309/2002 on the file of the JFCM, Mavelikkara is the appellant, who challenges the order of acquittal of offence punishable under Section 138 of the Negotiable Instruments Act (for short the NI Act) in a private complaint filed by him before the court below. 2. The complainants case is that, on 08.07.2002 the accused borrowed an amount of Rs.3,75,000/- and in discharge of the loan liability, she issued Ext.P1 cheque dated 22.02.2002 drawn for an amount of Rs.3,75,000/- in the name of the complainant, on State Bank of Travancore, Kurathiyad branch. The cheque on presentment was dishonoured by the drawee bank for the reason that the accused did not maintain sufficient amount in her account. A demand notice sent to the accused seeking repayment of debt was accepted by her, but she failed fail to settle the transaction and further did not bother to respond also. On these facts, the appellant filed private complaint for the offence punishable under Section 138 of the NI Act before the court below. 3. The accused denied charge under section 138 of the NI Act contending that she had neither executed Ext.P1 cheque nor delivered it to the appellant. The defence case set up by the accused is that Ext.P1 cheque was removed from her house by appellant by committing theft. It is said that the appellant is a family friend of her and she did not have any monetory transaction necessitating issue of Ext.P1 cheque in the name of the appellant. 4. On the side of the appellant, he was examined as PW1 and Exts.P1 to P6 were marked on his side. 5. After answering the questions that were put put to the accused under Section 313 Cr.PC, she summoned the Manager of the drawee bank and examined him as DW1. DW2 is the collecting banker before whom the cheque was presented for encashment. D1 and D2 are the defence records produced to prove the contention of the accused. 6. The court below after going through the entire records held that the appellant failed to prove that accused executed and delivered Ext.P1 cheque to him. DW2 is the collecting banker before whom the cheque was presented for encashment. D1 and D2 are the defence records produced to prove the contention of the accused. 6. The court below after going through the entire records held that the appellant failed to prove that accused executed and delivered Ext.P1 cheque to him. After comparing the signature in Ext.P1 cheque with the admitted signatures of the accused, the court below opined that there was difference in the signature since the alphabet letter S in the initial of accused, Sreekala was missing in Ext.P1 cheque, whereas, her admitted signatures contained the alphabet S also. It was also observed that appellant failed to discharge his burden by making available necessary bank records containing the admitted signature of accused maintained in the drawee bank. Under these circumstances, the court below was not inclined to accept the case of the appellant that accused drew and delivered Ext.P1 cheque in his name. Accordingly, the impugned order of acquittal was passed. 7. I have heard the learned counsel for the appellant as well as the accused. 8. It is contended by the learned counsel for the appellant that the court below failed to appreciate the evidence given by the appellant as well as to take into account the cogent circumstances and also the broad probability in the case and consequently entered into an erroneous finding resulting in issue of impugned order of acquittal which under no circumstance can be sustained either on evidence and law. It was further contended that for the mere reason that the initial of accused was missing in Ext.P1 cheque, it cannot be assumed that it was not signed by the accused at all. It was brought to my notice that Ext.D1 Copy of Account Opening Form containing the admitted signature of the accused was already available before the trial court for due comparison of disputed signature with the admitted signature therein and therefore itself, the observation that appellant failed to discharge his burden was factually erroneous. The learned counsel for the appellant further relied on the testimony given by DW1, Manager of the drawee bank who proved that the dishonour of the cheque was not on account of any difference in signature but on a different ground of insufficiency of fund. The learned counsel for the appellant further relied on the testimony given by DW1, Manager of the drawee bank who proved that the dishonour of the cheque was not on account of any difference in signature but on a different ground of insufficiency of fund. On these reasons, the learned counsel for the appellant sought the order of acquittal to be reversed and the accused be held guilty of offence punishable under Section 138 of NI Act. 9. The learned counsel for the 2nd respondent, accused on the other hand contended that the view taken by the court below is in accordance with evidence and law and therefore, the finding of the court below did not require any interference at all. It was pointed out that in spite of a petition having been filed on 09.08.2005 before the court seeking to forward Ext.P1 cheque for expert opinion, no orders have been passed thereon and this approach of the court below, though it ultimately ended in passing an order of acquittal, caused prejudice to him. On merits of the case also, it was argued that the testimony given by PW1 seeking to prove the transaction and issue of delivery of cheque is not sufficient to conclude that the accused executed the disputed cheque. It is also argued that the defence contention that the cheque was removed by theft is probablised by the circumstances and evidence on record. 10. It seems that petition dated 09.08.2005 filed by the accused seeking to forward the disputed signature in Ext.P1 cheque for expert opinion was not considered and no orders were also issued. It, by all means, might be due to the fact that the petition was delayed and filed only after the evidence on both sides was closed. Even otherwise also, I do not think that in all cases, evidence of an expert is of any fruitful evidence in deciding on the disputed signature of the party. There are occasions when a drawer of cheque may consciously and deliberately deviate from the normal signature and sign in a different fashion in order to avoid liability under the cheque. In order to combat such situations, it is always safe to look for the direct evidence proving the execution of cheque. There are occasions when a drawer of cheque may consciously and deliberately deviate from the normal signature and sign in a different fashion in order to avoid liability under the cheque. In order to combat such situations, it is always safe to look for the direct evidence proving the execution of cheque. So far as this case is concerned, the appellant, PW1 said that Ext.P1 cheque was brought by the accused to his house on 22.10.2002 and signed right in her presence. No other inmates were stated by PW1 to be present in her house at the time of execution or delivery of the cheque. PW1 said that husband of the accused was also present, whether it could be true or not. Once the testimony of PW1 is believable, it is sufficient enough to prove execution of Ext.P1 cheque. Therefore, for the mere reason that lower court did not pass any orders on the petition dated 09.08.2005 filed by accused is not a matter which the accused can canvass as a ground which caused prejudice to his defence. 11. DW1, the Manager of the drawee bank summoned before the court also said after his perusing the signature in Ext.P1 cheque that it tallied with the admitted signature of the accused contained in Ext.D1 Account Opening Form. The only difference that was noticed in Ext.P1 is that the initial of the accused was missing. In all other respects, there were no differences as between both signatures admitted and disputed and therefore itself, according to DW1, the ground for dishonour of the cheque indicated in the dishonour memo was not referable to any difference in signature. On the other hand, the dishonour was on the sole ground of insufficiency of funds at the credit of the drawer. Even otherwise, it appears that, no marked difference could be made out between the signature in Ext.P1 and those admitted by accused. Mere suggestion that the accused did not sign the cheque and it was removed by theft is not a good substitute for reliable evidence. PW1 in her testimony sought to explain that Ext.P1 cheque was brought to her house already filled up. On the entire cross-examination of appellant being put to scrutiny, I do not find any reason to reject PW1s evidence to be unreliable and untrustworthy. PW1 in her testimony sought to explain that Ext.P1 cheque was brought to her house already filled up. On the entire cross-examination of appellant being put to scrutiny, I do not find any reason to reject PW1s evidence to be unreliable and untrustworthy. Therefore, taking whole circumstances and evidence into account, I have only to disagree with the view of the court below that appellant failed to prove execution of Ext.P1 cheque. 12 As regards the source of from where the amount Rs.3,75,000/- was raised also, there is sufficient evidence, though no documents were produced or proved. Even according to the accused also, PW1 is a family friend. He said that the amount advanced to the accused as loan was already kept in his house for the purpose of building construction. He said that he had account in SBT, Kurathiyad and also Co-operative Bank. He denied the allegation that his property was attached for recovery of agricultural loan. He denied the defence suggestion that cheque came to his possession by way of theft. In my view, the appellants testimony convinces that he had requisite fund also for advancing loan to the accused. Besides, the afore-evidence, there is presumption of consideration also under Section 139 of the NI Act, which in my opinion, could not be rebutted by the accused in any convincing manner. The accused did not have any suggestion to PW1 that he did not have adequate fund for advancing loan. Taking all these circumstances and evidence I am satisfied that the appellant succeeded in proving execution and lawful delivery of Ext.P1 cheque. The finding entered into by the court below cannot be sustained for any valid reason and the unreasonableness in the view taken by the court below persuades me to reverse the order of acquittal and find the accused to be guilty of offence punishable under Section 138 of the NI Act. In the result, the appeal succeeds and reversing the order of acquittal, the accused-2nd respondent is convicted of offence punishable under Section 138 of the NI Act and sentenced to undergo a days imprisonment till the rising of the court and to pay the entire cheque amount of Rs.3,75,000/- as compensation to the appellant under Section 357(3) Cr.PC. In case the accused defaults in making payment of the amount, he shall undergo simple imprisonment for six months.