1. Complainant in S.T.C.No.882/2012 on the files of the Judicial First Class Magistrate Court, Thalassery, has filed this appeal challenging judgment of acquittal rendered by the learned Additional Sessions Judge - II, Thalassery in Crl.A.No.418/2013 as per judgment dated 28.07.2018, whereby the judgment of the Judicial First Class Magistrate Court, Thalassery, recording conviction rendered on 12.11.2013 was set aside.
2. Heard the learned counsel for the appellant/complainant and the learned counsel appearing for the 1st respondent/accused. Also heard the learned Public Prosecutor.
3. Here, the case of the complainant is that the accused borrowed Rs.3 Lakh from him promising to repay the same within one month. In order to discharge the said debt, the accused had issued a cheque for Rs.3 Lakh dated 16.01.2012 drawn on Kadirur Service Co-operative Bank Limited, Chonadam Branch. When the cheque presented for collection, the same got dishonoured. Thereafter, when notice of demand was issued, the accused failed to repay the amount.
4. The learned Magistrate recorded evidence confined to that of PW1 and Exts.P1 to P4 on the side of the complainant. Thereafter, the learned Magistrate found that the accused committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act' hereinafter) and accordingly, he was sentenced to pay a fine of Rs.3 Lakh and in default of payment of fine to undergo simple imprisonment for a period of six months and fine if realised, the same was ordered to be paid to the complainant under Section 357(1) of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter).
5. When the matter was taken up in appeal before the learned Additional Sessions Judge, he reversed the finding of conviction and acquitted the accused.
6. According to the learned counsel for the appellant/complainant, the reasons put forward by the appellate court for setting aside the finding of the trial court, as stated in paragraph No.11 of the impugned judgment, are unsustainable. The learned counsel also would submit that the reliance placed by the learned Additional Sessions Judge in the decision in Divakaran v. State of Kerala reported in [2016 (4) KHC 901] in fact cannot be applied at present, since the same was overruled by a Division Bench of this Court in Basheer K. v. C.K.Usman Koya and Another reported in [2021 (2) KHC 432]. He also has placed reliance on the decision rendered by the Hon’ble Apex Court along with M/s.Kalamani Tex & Anr v. P.Balasubramanian reported in [LL 2021 SC 75], where in paragraph No.15, it was held as under:
“15. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant – Respondent to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law.”
7. Therefore, admission of the signature would be sufficient to prove the execution. The learned counsel would also submit that, in the present case, the evidence of PW1 was not at all shaken in cross-examination and that the defence set up by the accused also failed to establish any convincing case. Therefore, the learned Additional Sessions Judge wrongly interfered the verdict of the learned Magistrate and recorded acquittal of the accused and the same would require interference.
8. Whereas, it is submitted by the learned counsel for the 1st respondent/accused that in this case, as far as the accused is concerned, the complainant is a total stranger. According to him, the accused borrowed some amount from one Radhakrishnan and at the time of the said transaction, Ext.P1 cheque was entrusted as security. Thereafter, the said liability was discharged, but the said cheque was misused for foisting the case. Thus, the complainant miserably failed to prove the case advanced and therefore, the learned Additional Sessions Judge is rightly reversed the judgment of the trial court.
9. Adverting to the rival contentions, the points arise for consideration are;
i) Whether the learned Additional Sessions Judge was justified in acquitting the accused of the offence punishable under Section 138 of the NI Act?
ii) Whether the verdict would require interference?
(iii) The order to be passed?
Point Nos.(i) to (iii)
10. In this case, the evidence is confined to the testimony of the complainant, who was examined as PW1, and Exts.P1 to P4. During chief examination, the complainant deposed that on 26.7.2010, the accused came to his residence and borrowed Rs.3 Lakh for his business purpose and he promised to repay the same within a period of one month. But, he failed to repay the same. Hence, he demanded the amount on 10.08.2011, though the accused sought six months’ time and issued a post dated cheque dated 16.01.2012 in discharge of the said liability. The said cheque was marked as Ext.P1. In the chief affidavit, it was further stated that the accused filled and signed Ext.P1 cheque in the presence of PW1. PW1 presented the said cheque for encashment, but the same was dishonoured for want of fund. Ext.P3, copy of lawyer notice and Ext.P4, acknowledgment card showing receipt of the notice by the accused were also tendered in evidence through PW1. During cross-examination, PW1 was confronted with only limited questions. The place of residence of the accused was put to PW1 in cross-examination to contend that the accused was a stranger to PW1. However, PW1 deposed that the accused was residing a little away from Thalassery and that he had been acquainted with him for the past four to five years. He also admitted that the accused had been working in a coconut oil shop in Thalassery and he did not issue any document at the time when he borrowed money. He also deposed that he had no other transaction with the accused. His financial capacity to pay the cheque amount was also challenged, which he denied. During re-examination, he had deposed that he had been working as an Engineer in Foreign country and he reached therefrom on leave and also stated that he had demanded the money from the accused. Then, he was asked whether he was familiar with Radhakrishnan. He stated that he did not know Radhakrishnan and also denied the defence case that Ext.P1 cheque as one issued to Radhakrishnan. He further stated that the handwriting appearing on Ext.P1 cheque was that of the accused.
11. In this case, having found that the initial burden cast upon the complainant had been discharged, the learned Magistrate convicted the accused, by extending the benefit of presumption under Section 139 of the NI Act in favour of the appellant/complainant. But, while setting aside the judgment of the trial court, the learned Additional Sessions Judge found that it is well-settled law that, as in any other criminal prosecution, in a case of this nature also, the initial burden is on the complainant and that, once the initial burden is discharged, the complainant would be entitled to the presumption under Section 139 of the NI Act. At the same time, the learned Special Judge found that, when a probable defence is put forward rather than a mere fanciful defence, the presumption under Section 139 of the NI Act stood rebutted and in this connection, he has placed reliance on the decision in paragraph 8 of the appellate judgment in Hiten P Dalal v. Bratindranath Banerjee reported in [AIR 2001 SC 3897]. Thereafter, in paragraph No.11, the learned Additional Sessions Judge found that in Ext.P3 lawyer’s notice, the complainant did not show the details of transaction between himself and the accused. According to the learned Sessions Judge, in view of the decision in Divakaran's case (supra), this is fatal. In fact, the said ratio cannot have an application at present as it was overruled by the Division Bench of this Court in Basheer's case (supra).
12. Secondly, the learned Additional Sessions Judge found that the nature of the debt or liability is not mentioned anywhere in the said document. The learned Special Judge also found that PW1 given evidence that Ext.P1 cheque was issued by the appellant without any demand on his side. Further, the source of money alleged to be given to the accused also not explained by PW1. Adverting to the said findings recorded by the learned Additional Sessions Judge to reverse the finding of conviction into acquittal, a narration of each and every events in the notice and in the complaint are not necessary as held in Basheer’s case (supra). In a notice contemplated under Section 138(b) of the NI Act, on dishonour of the cheque, demand for the said specified amount covered by the dishonoured cheque by sending a notice in writing in the known address of the drawer would suffice the requirement. In the complaint also, the basic facts led to issue of cheque, the summary of the transaction, and the events led to dishonour of the cheque would be necessary and the complainant need not state the source of money, the financial capacity of the complainant etc. in minute niceties. Here, the basic facts in the above line would find in the complaint. In the instant case, in chief affidavit, PW1 given evidence that he had demanded the amount on 10.08.2011 and accordingly, Ext.P1 cheque was issued. But, during cross-examination, his answer was that cheque was issued voluntarily by the accused and the same was clarified during re-examination that he had demanded the money. Therefore, the finding of the learned Sessions Judge that Ext.P1 was voluntarily issued by the accused is not correct. Even otherwise, if a person issuing a cheque voluntarily to discharge a legally enforceable debt, law does not prohibit the same and such cheques also carry legal sanctity. Apart from that, even though the source of the funds was challenged and denied by PW1, no further questions were asked to establish that PW1 was a person who did not have sufficient funds with him to advance the cheque amount. In this context, it is highly relevant to note that, during re-examination, PW1 deposed that he was working as an Engineer abroad and had come to the country on leave. Thus, the financial capacity of PW1 to advance the cheque amount to the accused need not be doubted.
13. In this case, it is worthwhile to note that, even though the accused had accepted the legal notice as per Ext.P4, he did not send any reply and remained silent upon receiving the said notice. It also fortifies the contention raised by the appellant that the accused had a liability towards PW1, as stated. Therefore, the reasons stated by the learned Additional Sessions Judge for setting aside the judgment of the trial court are not found to be justifiable. On the other hand, the learned Magistrate is right in finding that the accused had committed an offence punishable under Section 138 of the NI Act. Thus, the verdict impugned is liable to be interfered.
In the result, this appeal is allowed. The judgment of acquittal passed by the learned Additional Sessions Judge dated 28.07.2018 is set aside, and the judgment dated 12.11.2013 rendered by the learned Judicial First Class Magistrate, Thalassery, convicting and sentencing the accused, is restored. Accordingly, the 1st respondent/accused is sentenced to undergo simple imprisonment for a day till rising of the court and to pay a fine of Rs.4,00,000/- (Rupees Four Lakh only). In default of payment of fine, the 1st respondent/accused shall undergo simple imprisonment for a period of six months. Fine if paid or realised, the same shall be paid as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. The 1st respondent/accused directed to appear before the Judicial First Class Magistrate Court, Thalassery, forthwith to undergo the sentence. Failing which, the learned Magistrate is directed to execute the sentence imposed hereby, without fail.
Registry is directed to forward a copy of this judgment to the trial court, for information and compliance.
