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2025 DIGILAW 2701 (KER)

AMMED  S/O. ABDU v. P. MOHANAN S/O. GOPALAN NAIR

2025-10-27

A.BADHARUDEEN

body2025
ORDER : A. BADHARUDEEN, J. 1. This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 , challenging judgment in Crl.A.No.69/2018 on the files of the Additional Sessions Court – IV, Thalassery, dated 17.10.2023, arising out of judgment dated 26.03.2018 in S.T.C.No.181/2013 on the files of the Chief Judicial Magistrate Court, Thalassery. The revision petitioner herein is the accused and the 1 st respondent herein is the complainant. 2. Heard the learned counsel for the revision petitioner/accused, the learned counsel appearing for the 1 st respondent/complainant and the learned Public Prosecutor. 3. I shall refer the parties in this Criminal Revision Petition as to their status before the trial court as ‘complainant’ and 'accused'. 4. Pursuant to dishonour of cheque, dated 02.11.2013 for Rs.8 Lakh, alleged to be borrowed by the accused from the complainant, prosecution was initiated alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’ hereinafter), by the accused. 5. The learned Magistrate took cognizance of the matter and recorded evidence by following summary trial. PW1 was examined and Exts.P1 to P8 were marked on the side of the complainant. No defence evidence was adduced by the accused. 6. On evaluation of the evidence available, the Magistrate Court found that the accused committed offence punishable under Section 138 of the NI Act and accordingly, the trial court convicted and sentenced the accused as under: “.........the accused is convicted and sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.10,00,000/- for offence U/s.138 of the Negotiable Instruments Act and in default of payment of fine the accused shall undergo simple imprisonment for a further period of two months. If fine is realised that shall be released to PW1, the complainant U/s. 357 (1)(b) of Cr.PC as compensation.” 7. Although Crl.A. No.69/2018 had been preferred, the learned Additional Sessions Judge allowed the appeal in part by modifying the sentence while sustaining the conviction. 8. While impeaching the veracity of the concurrent verdicts of the conviction, the learned counsel for the accused argued that in the instant case, the complainant failed to prove the transaction as to the borrowing of Rs.8 Lakh, as alleged, with the support of any documentary evidence apart from the cheque or by the evidence of any other witness to the transaction. According to the learned counsel, the case of the accused is that he borrowed Rs.8 Lakh from one Ibrahim Haji and had entrusted four cheques, one of which was allegedly misused for the purpose of this case. It is further argued that an initial burden is cast upon the complainant to prove the transaction which led to the execution of the cheque, in order to attract the presumptions under Sections 118 and 139 of the NI Act. The decision of this Court in Padma Conductors Pvt. Ltd. v. MIRC Electronics reported in [2024 (1) KHC 531] has been placed in this regard. According to the learned counsel, the accused did not borrow any amount from the complainant or the accused never issued a cheque in the name of the complainant and therefore, the trial court as well as the appellate court wrongly found that the accused committed offence punishable under Section 138 of the NI Act. 9. Per contra, the learned counsel appearing for the 1 st respondent/complainant argued that in this case, the evidence available is confined to that of PW1. In categorical terms, PW1 deposed that the accused, who had borrowed Rs.8 Lakh, issued Ext.P1 cheque upon demand for repayment of the said sum. According to the learned counsel, the evidence of PW1 regarding the transaction which led to the execution of Ext.P1 cheque was not at all shaken during cross-examination, and therefore, the trial court as well as the appellate court rightly relied on the same while finding that the accused had committed the offence punishable under Section 138 of the NI Act. Therefore, the conviction and sentence would not require any interference. 10. Now, the questions arise for consideration are: (i) Whether the trial court as well as the appellate court wrongly entered a conviction for the offence punishable under Section 138 of the NI Act? (ii) Whether the conviction and sentence would require interference? (iii) The order to be passed? Point Nos.(i) to (iii) 11. The specific case of the complainant is that the complainant and the accused were residing in the same locality and were family friends. Further, the father of the complainant and the accused were business partners. The complainant, who was working as a Senior Inspector of Co-operative Societies in the Office of the Assistant Registrar, Kuthuparamba, retired from service and received a substantial amount from his Provident Fund. Further, the father of the complainant and the accused were business partners. The complainant, who was working as a Senior Inspector of Co-operative Societies in the Office of the Assistant Registrar, Kuthuparamba, retired from service and received a substantial amount from his Provident Fund. Knowing this fact, the accused approached the complainant for a loan of Rs.8 Lakh on the pretext of closing a gold loan, with an assurance to repay the same within one week after re-pawning the gold ornaments. Accordingly, the accused borrowed Rs.8 Lakh from the complainant as on 20.10.2013. The complainant, in his chief affidavit, deposed in terms of the case set up in the complaint. According to him, though he accepted Ext.P1 cheque bona fide believing that the same would be honoured upon presentation for collection, it was dishonoured for want of sufficient funds when presented. Ext.P1 - cheque in original; Ext.P2 - dishonour memo containing the endorsement that the cheque was dishonoured for “funds insufficient”; Ext.P3 - copy of the demand notice; Ext.P4 - acknowledgment card; Ext.P5 - reply notice; Ext.P6 - copy of GPF Form T; Ext.P7 - rental agreement between the accused and one Gopalan Nair, who is the father of the complainant; and Ext.P8 - copy of the FIR, were tendered in evidence through PW1. During cross-examination, the case put up by the accused was that he had not made any entries in Ext.P1 cheque and that it was a cheque issued to one Ibrahim Haji at the time when he had availed a loan of Rs.8 Lakh from Ibrahim Haji. 12. It is a well-settled legal principle that while exercising revisional jurisdiction, the power of the court is not so wide as to re-appreciate the evidence to have a contrary finding, and the power is limited to in examining the perversity, impropriety, or illegality of the order or orders under challenge. In the instant case, as far as the evidence available is concerned, the same is confined to PW1, as already observed. Relying on the evidence of PW1, the trial court as well as the appellate court concurrently found that the accused had borrowed a sum of Rs.8 Lakh from the complainant on 20.10.2013 and, in discharge of that liability, had issued Ext.P1 cheque, which was dishonoured for want of sufficient funds. Thereafter, the amount was also not repaid on demand. Relying on the evidence of PW1, the trial court as well as the appellate court concurrently found that the accused had borrowed a sum of Rs.8 Lakh from the complainant on 20.10.2013 and, in discharge of that liability, had issued Ext.P1 cheque, which was dishonoured for want of sufficient funds. Thereafter, the amount was also not repaid on demand. The trial court and the appellate court concurrently found that the accused committed offence punishable under Section 138 of the NI Act. Accordingly, the accused was convicted. It is interesting to note that an initial burden is cast upon the complainant to discharge his initial burden in the matter of transaction which led to execution of Ext.P1 cheque. In the instant case, the evidence of PW1 as to the borrowing of 8 Lakh by the accused on 20.10.2013 and the issuance of Ext.P1 cheque towards discharge of the said liability was not at all shaken during cross examination. Even though the accused had a case that Ext.P1 cheque was issued to one Ibrahim Haji and that it was not signed by him, the said contention was found to be not acceptable to prudence, as no prudent man would accept a cheque without a signature, as the same would not serve any purpose. Therefore, the contention raised by the accused that he did not sign the cheque or issue the same to PW1, is not believable. Rather, there is not even a remote piece of evidence to substantiate the same. 13. While addressing the argument advanced by the learned counsel for the accused that the complainant failed to prove the transaction as to borrowing of Rs.8 Lakh without support of any documentary evidence apart from the cheque or by the evidence of any other witnesses to the transaction, it is to be borne in mind that in order to prove a money transaction based on a cheque, law does not insist for any other documents. Similarly, the law does not insist the presence of a witness for the transaction. A transaction in between two persons in the absence of any other person and without support of any other person and without support of any other documents based on a cheque alone would be sufficient to prove the transaction when the evidence available would establish that there was transaction and the execution of cheque. A transaction in between two persons in the absence of any other person and without support of any other person and without support of any other documents based on a cheque alone would be sufficient to prove the transaction when the evidence available would establish that there was transaction and the execution of cheque. A misconception is being carried through out to the effect that in order to prove borrowing of money from one person by another, there must be documentary evidence by way of bank transactions or otherwise. If such a procedure is insisted, the intention behind issuance of cheque to facilitate business as well as commercial transactions easily would be in turmoiled and transaction based on cheque would become a hazardous job. That, in turn, would either slow or stall business and commercial deals. 14. It is a well-settled principle of law that, when one party asserts that he has paid a certain amount to another while suing him, the party who accepts the same is duty bound to prove the transaction and the execution of the cheque, in consequence thereof when the other party denies the transaction and the liability. It is one of the fundamental principles of law that when one party asserts an allegation and the other party denies it, then, that is a “fact in issue” to be decided by the court based on evidence. No doubt, evidence means proof of facts by oral evidence, as embodied in Section 59 of the Indian Evidence Act, 1872 (for short, ‘the Act, 1872’, hereinafter), corresponding to Section 54 of the Bharatiya Sakshya Adhiniyam, 2023 (for short, ‘the BSA , 2023’, hereinafter), and it has been provided that all facts, except the contents of documents or electronic records, may be proved by oral evidence, and as per Section 60 of the Act, 1872 corresponding to Section 55 of the BSA , 2023, oral evidence must be direct. Similarly, to a certain extent, documentary evidence also could be relied on, and the documentary evidence can be proved by primary or by secondary evidence, as contemplated under Section 61 of the Act, 1872 corresponding to Section 56 of the BSA , 2023. Similarly, to a certain extent, documentary evidence also could be relied on, and the documentary evidence can be proved by primary or by secondary evidence, as contemplated under Section 61 of the Act, 1872 corresponding to Section 56 of the BSA , 2023. As per Section 62 of the Act, 1872 corresponding to Section 57 of the BSA , 2023, primary evidence means the document itself produced for the inspection of the Court, and as per Section 63 of the Act, 1872 corresponding to Section 58 of the BSA , 2023, secondary evidence means and includes certified copies given under the provisions contained therein. The mode of proof of documents by primary evidence is provided in Section 64 of the Act, 1872 corresponding to Section 59 of the BSA , 2023, and the mode of proof of secondary evidence is described in Section 65 of the Act, 1872 corresponding to Section 60 of the BSA , 2023. Thus, a fact in issue can be proved either by oral evidence, by documentary evidence, or by both oral and documentary evidence. That apart, the circumstantial evidence forthcoming also can be looked into. Therefore, there is no necessity in law that, in a money transaction involving a cheque, either in civil or criminal proceedings, when money is alleged to have been borrowed by the accused or the defendant, as the case may be, there is any burden cast upon the complainant or the plaintiff to prove the passing of money by documentary evidence or by insisting on the presence of witnesses. If a transaction between two persons without any other document and without the presence of any other person by issuing a cheque is the case, the evidence of the complainant or plaintiff would be sufficient to prove the transaction, if the evidence is wholly reliable. Only when the evidence found to be not reliable, then, further evidence to be insisted upon either of substantial or corroborative nature. Thus, the evidence of PW1 remained unshaken during cross-examination, and therefore, the trial court as well as the appellate court rightly entered a conviction, which does not require any interference. 15. Only when the evidence found to be not reliable, then, further evidence to be insisted upon either of substantial or corroborative nature. Thus, the evidence of PW1 remained unshaken during cross-examination, and therefore, the trial court as well as the appellate court rightly entered a conviction, which does not require any interference. 15. Coming to the question of sentence, it is seen that the appellate court has modified the sentence to the least possible extent, by directing the accused to undergo imprisonment till the rising of the court and to pay compensation of Rs.10,00,000/- to the complainant, and in default of payment of compensation, to undergo simple imprisonment for a period of six months. Therefore, the same also does not require any interference. 16. In the result, this Criminal Revision Petition fails and is dismissed. The bail bond, if any, executed by the revision petitioner/accused stands cancelled, and he is directed to surrender before the trial court to undergo the modified sentence, as per law. The amount of Rs.50,000/- deposited by the revision petitioner/accused shall be released to the complainant by treating the same as part of the compensation, and the accused shall pay only the balance amount towards the compensation. Registry is directed to forward a copy of this order to the trial court for information and execution of sentence, without fail.