Cheque; B. Sivaprasad Vs. Sureshkumar S. [Kerala High Court, 26-05-2015]

Negotiable Instruments Act – Section 138 – Chitty Transaction – testimony during cross examination would indicate that the accused bid a chitty and the amount due thereunder was disbursed after a week from the date of bid – No material whatsoever has been produced by the complainant to show that the accused was a subscriber to chitty conducted by him and that he bid the chitty or it was priced in his favour and that the cheque in question was issued in relation to that chitty transaction – there is absolutely no reason to exercise the appellate jurisdiction to interfere with the conclusions arrived at by the trial court – complainant failed to establish commission of offence under section 138 of the NI Act by the accused – conclusions and findings of the trial court are perfectly in tune with the evidence on record.

Cheque


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR, J.

Crl.A No. 388 of 2003

Dated this the 26th day of May, 2015

AGAINST THE JUDGMENT IN CC 298/2000 of J.M.F.C.-IV (MOBILE), THIRUVANANTHAPURAM DATED 25-01-2003

APPELLANT(S)/COMPLAINANT

B. SIVAPRASAD

BY ADVS.DR.K.P.KYLASANATHA PILLAY (SR.) SRI.ARUN.B.VARGHESE SMT.SREEDEVI KYLASANATH

RESPONDENT(S)/ACCUSED

1. SURESHKUMAR S.

2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R1 BY ADV. SRI.JOHN S.RALPH R1 BY ADV. SRI.V.V.PRATHEESH KURUP R2 BY PUBLIC PROSECUTOR SMT.LALIZA T.Y

JUDGMENT

The appellant was the complainant in C.C.No.298/2000 on the files of the Court of Judicial First Class Magistrate-IV (Mobile), Thiruvananthapuram. This appeal has been filed challenging the order of acquittal of the respondent who faced the trial for the offence under

Section 138 of the Negotiable Instruments Act.

The case of the appellant was that the first respondent/accused obtained a loan of Rs.4,00,000/- from him on 9.11.1999 and in discharge of the said legally enforceable debt, issued Ext.P1 cheque bearing No. 121888 dated 9.12.1999 drawn on State Bank of Hyderabad, Thiruvananthapuram branch. When the said cheque was presented for encashment, it was bounced owing to the reason ‘payment stopped by the drawer.’ The further case of the appellant is that the first respondent-accused stopped payment deliberately and with an ulterior motive and no sufficient fund was available in his account to honour the cheque. Upon dishonour of the cheque, the complainant issued statutory notice informing the first respondent about the dishonour of the cheque and calling upon him to pay the amount due. Subsequent to that a telegram was also sent, according to the appellant, to the first respondent-accused. Though, the first respondent received the notice and the telegram, he had failed to repay the amount and the complaint was filed after complying with the statutory formalities in the said circumstances, raising such allegations. On due process, the first respondent appeared before the court. The particulars of the offence against him were read over and explained to him and he pleaded not guilty and claimed to be tried. To establish the accusation of commission of offence under section 138, N.I.Act against the first respondent/accused, the appellant got himself examined as PW1 and got marked Exts.P1 to P10. Upon closure of the evidence, the first respondent/the accused was examined under section 313, Cr.P.C. The first respondent denied all incriminating circumstances put to him. The first respondent got himself examined as DW1 after putting an application under section 315 of the Cr.P.C and got examined the Branch Manager of State Crl.A.388/2003 3 Bank of Hyderabad, Thiruvananthapuram as DW2. On his side, Exts.D1 to D3 were also marked. After a careful evaluation of the evidence on record, the trial court found that the appellant had failed to prove the execution of Ext.P1 cheque and consequently, the commission of offence under section 138, N.I.Act by the first respondent. Accordingly, the first respondent was acquitted under section 255(1) Cr.P.C. 2.I have heard the learned counsel for the appellant and the learned Public Prosecutor.

3. The learned counsel for the appellant contended that the finding of the trial court that the appellant was not entitled to the presumption available under section 139, N.I.Act is unsustainable. It is contended that the appellant had succeeded in proving the execution of Ext.P1 cheque and therefore, he was entitled to get the benefits of the presumption available under section 139, N.I.Act. It is also contended that since the first respondent has admitted the Crl.A.388/2003 4 signature in Ext.P1 cheque, the appellant was entitled to get the presumption available under sections 118 and 139 of the N.I.Act and further that to dislodge the presumption available under those sections, the first respondent-accused had not adduced any evidence. In short, it is contended that the acquittal of the first respondent of the offence under section 138, N.I.Act as per the impugned judgment is nothing but an outcome of an utter perverse appreciation of evidence. Evidently, in this case, the appellant was examined as PW1. He deposed to the effect that he is conducting money lending business. A scanning of the evidence of PW1 would further reveal that, relating his transaction in question with the accused/the first respondent, there is absolutely no documentary evidence. He has deposed to the effect that apart from the cheque issued, no security was demanded and obtained. According to him, the first respondent borrowed an amount of Rs.4,00,000/- on 9.11.1999 assuring that the amount would be repaid within a period of one month and on that day itself, issued Ext.P1 cheque drawn on State Bank of Hyderabad, Thiruvananthapuram branch. He would Crl.A.388/2003 5 also depose that the said cheque when presented for encashment got dishonoured on the ground ‘payment stopped by the drawer’ and the dishonour memo was produced as Ext.P2. He would further depose that on 25.1.2000, statutory notice was issued and it was not responded by the accused. It is his further contention that subsequently, he sent Ext.P6 telegram to the accused. He would also depose that it is the failure on the part of the first respondent in effecting repayment of the borrowed amount that constrained him to file the complaint after complying with the formalities. A careful scanning of the evidence of PW1 would reveal that in the chief examination, he deposed that an amount of Rs.4,00,000/- was borrowed by the first respondent. He would depose :-

[Omitted]

However, during the cross examination of the appellant he deposed thus:-

[Omitted]

4. Indisputably, in this case, the execution of the cheque was denied by the first respondent/accused. There can be no doubt with respect to the position that when the execution of the cheque is denied to avail the benefit of the presumption under sections 118 and 139 of the N.I.Act, the complainant-appellant was to prove the execution of the cheque. This position is settled by a Division Bench of this Court in