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2023 DIGILAW 386 (KER)

T. K. Johnson v. P. C. Mathew

2023-05-19

V.G.ARUN

body2023
JUDGMENT : V.G. Arun, J. 1. Appellant is the complainant in S.T. No. 1070 of 2015 of the Chief Judicial Magistrate's Court, Kollam. The complaint was filed against the 1st respondent, alleging commission of the offence under Section 138 of the Negotiable Instruments Act. The allegations in the complaint are to the following effect: The complainant and accused are close relatives. In the year 2011 the accused sought financial assistance from the complainant for the purpose of constructing a house boat. As the accused is a lose relative, the complainant agreed to provide financial assistance and accordingly paid Rs.30,00,000/- by way of cheque and cash. After receiving full amount, accused executed Ext.P1 agreement on 25.03.2013 acknowledging receipt of Rs.30,00,000/- from the complainant and agreeing to pay Rs.50,000/- per month to the complainant towards profit share from the house boat, till Rs.30,00,000/- is repaid in full. As the accused failed to comply with the terms of the agreement, the complainant caused a lawyer notice to be issued on 30.05.2015, demanding payment in terms of the agreement. On receipt of the notice, the accused approached the complainant on 14.06.2015 and issued Ext.P3 cheque for Rs.40,30,000/- towards repayment of the amount borrowed and the amount due towards profit share. The cheque, on presentation, was dishonoured for insufficiency of funds. Hence, the complainant issued notice dated 08.07.2015 demanding the amount due under the cheque. Accused evaded the notice and caused the same to be returned with the endorsement `unclaimed'. The accused having failed to respond to the notice or repay the cheque amount, the complaint was filed. 2. Before the trial court, the complainant got himself examined as PW1 and the Managers of the drawer and drawee banks as PWs 2 and 3. The accused denied the incriminating circumstances put to him during 313 examination and submitted that, during 2008-2009, the complainant had borrowed an amount of Rs.14 Lakhs from him and had repaid that amount in the year 2011. Later, when the complainant was approached seeking financial help for the accused's sister, he insisted that the accused should stand guarantee for the amount and should hand over blank signed cheque as security. The amount borrowed by the accused's sister was repaid, but the interest portion is outstanding. For that reason, the blank signed cheque given as security by the accused was presented and thereafter the false case instituted when cheque bounced. The amount borrowed by the accused's sister was repaid, but the interest portion is outstanding. For that reason, the blank signed cheque given as security by the accused was presented and thereafter the false case instituted when cheque bounced. No evidence, either oral or documentary, was adduced on the defence side. 3. The trial court, on appreciation of evidence and legal contentions, held the complainant to have failed in proving that the accused had executed and issued Ext.P3 cheque for Rs.40,30,000/- towards discharge of a legally enforceable debt. The complainant having thus failed to prove commission of the offence under Section 138 of the NI Act, the accused was acquitted under Section 255(1) Cr.P.C. Hence, this appeal. 4. Learned counsel appearing for the appellant/complainant assailed the trail court judgment on various grounds. It is contended that the trial court had acquitted the accused based on mis-appreciation of evidence and misunderstanding of law. The court deviated from the well settled legal position that, once execution of the cheque is proved, the presumption under Section 139 of the NI Act is attracted and burden is upon the accused to rebut the presumption. In the case at hand, other than pointing out certain minor discrepancies in the complainant's evidence, absolutely no effort was taken by the accused to rebut the presumption. The trial court ought to have found that, in Ext.P1 agreement, the accused had categorically admitted receipt of Rs.30,00,000/- as well as his liability to repay an amount of Rs.40,30,000/-. Further, Ext.P3 cheque had been issued for the said amount of Rs.40,30,000/-. Surprisingly, in spite of the cogent evidence, the trial court relied on the discrepancies to find the complainant to have failed in proving his case. 5. Learned counsel for the first respondent/accused submitted that the well considered judgment of the trial court does not warrant interference, even if a different view is possible. It is contended that the trial court found that, by reason of the material inconsistencies and lacuna in the evidence tendered by the complainant, the presumption under Section 139 stood rebutted. In his complaint the appellant had stated that the amount of Rs.30,00,000/- was paid to the first respondent by way of cheque and cash. The details of such payment was not stated in the complaint or even in the appellant's chief examination. In his complaint the appellant had stated that the amount of Rs.30,00,000/- was paid to the first respondent by way of cheque and cash. The details of such payment was not stated in the complaint or even in the appellant's chief examination. On the other hand, the appellant came forward with a new case that an amount of Rs.14,00,000/- was paid to the 1st respondent in the year 2011 by way of cheque and a further amount of Rs.10,00,000/- was paid in the year 2013, to the sister of the 1st respondent. The cheque for Rs.10,00,000/- was issued to the 1st respondent's sister to ensure that the amount is properly utilized. On being questioned as to how Rs.14,00,000/- plus Rs.10,00,000/- would become Rs.30,00,000/-, the appellant's answer was that the balance Rs.6,00,000/- was due towards profit share in terms of Ext.P1 agreement. Other than stating that he is in possession of documents evidencing payment of amounts to the 1st respondent and his sister, no material was produced by the appellant. Curiously, during his cross-examination, the appellant deviated further from his original case and stated that he had paid only Rs.9,00,000/- to the 1st respondent's sister. The appellant also did not care to examine the witnesses to Ext.P1 agreement. The above inconsistencies and draw backs in the appellant's evidence had prompted the trial court to find the first respondent's defence that the complaint was filed misusing the blank signed cheque and stamp paper handed over by him as security for the amount advanced to his sister, to be more probable. 6. It is well settled that the presumption under Section 118(a) Crl.P.C. and 139 of the NI Act gets attracted once the complainant succeeds in proving the execution of the cheque. Here, the defence put forth by the accused is that the complaint is filed by misusing a blank signed cheque handed over as security for the amount borrowed by his sister. In this regard it is pertinent to note that the complainant also admits that, out of Rs.30,00,000/- due from the accused, Rs.10,00,000/- (later corrected as Rs.9,00,000/-) was paid to the accused's sister. Surprisingly, the person in whose name the cheque for that amount was issued was not examined or documentary evidence regarding such payment produced. There is also no material to prove that the amount received was handed over to the accused by his sister. Surprisingly, the person in whose name the cheque for that amount was issued was not examined or documentary evidence regarding such payment produced. There is also no material to prove that the amount received was handed over to the accused by his sister. As such, the evidence is thoroughly insufficient to prove payment of Rs.30,00,000/- to the accused. Without proving this basic fact, the presumption under Section 118(a) and 139 will not be attracted. Although complainant had marked Ext.P1 agreement in support of his case, failure to examine the witnesses to the agreement creates a doubt about the authenticity of that document. As held by the Apex Court in Basalingappa v. Mudibasappa, 2019 (5) SCC 418 , when there are contradictions in the complaint, examination-in-chief and cross examination of the complainant, it is fatal to the prosecution and unless there is a satisfactory explanation, it would enable the court to conclude that the presumption under Section 139 stands rebutted. In ANSS Rajasekhar v. Augustus Jeba Ananth, 2020 (15) SCC 348 it was held that, when evidence elicited during cross-examination of the complainant creates serious doubt about existence of the debt and the transaction, the presumption under Section 139 is rebutted and the defence case stands probablised. In the instant case also, the glaring difference between the allegations in the complaint and the versions given by the complainant during his examination and the attempt to improve the case by stating new facts are sufficient to probabilise the defence case. This precisely is the finding of the trial court also. As such, I see no reason to interfere with the impugned judgment. 7. In the result the Crl. Appeal is dismissed.