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2008(1) Bankmann 29 (Ker.)
KERALA HIGH COURT
K. Hema, J.
Kamalammal —Appellant
versus
C.K. Mohanan & Anr. —Respondents
Cri. A. No. 275 of 2001(A)
Decided on 18-7-2006
For the Appellant:C.P. Udayabhanu, C.K. Vidyasagar, Advocates.
For the Respondents: P. Chandy, Joseph, Public Prosecutor.
IMPORTANT POINT
Presumption available u/s. 139 of the Negotiable Instruments Act in respect of the purpose for which cheque is allegedly received by the holder.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 139—Dishonour of cheque—Presumption u/s 139 of the Act—Accused respondent was alleged to have borrowed a sum of Rs. 2 lakhs and issued cheque towards discharge of that liability and cheque bounced—Defence set up by accused was that he borrowed Rs. 25000/- from PW1, power of attorney holder of complainant & handed over two blank cheques to her as security and discharged part of that liability but PW1 misused the cheque—Trial court acquitted accused—Appeal—Section 139 did not provide for a presumption in respect of issuance/execution of cheque—Only fact which could be presumed was the purpose for which cheque was received by complainant—Section 139 applied only if it was established that cheque was of the nature u/s 138 of the Act—No allegations in complaint or in evidence that cheque was issued blank with implied authority—Burden was on holder of cheque to establish all pre-requisites for drawing the presumption—Court must be satisfied that holder of cheque received the cheque by entitlement and did not procure it by any other means—No evidence to show that complainant—Appellant received the cheque—Acquittal called for no interference. (Paras 25, 34, 42, 46 & 48 to 52 & 55)
Result: Appeal allowed .
K. Hema, J.—Can it be presumed under Section 139 of the Negotiable Instruments Act (‘the Act, for short) that the cheque is drawn/executed by the accused for the discharge of a debt or liability? What exactly is the ‘fact’ which can be presumed by the Court under Section 139 of the Act? Under what circumstance the presumption under Section 139 can be drawn? What are the basic requirements for drawing the presumption under Section 139 of the Act? On whom does the burden lie to establish those pre-requisites? These are some of the important questions which I would ponder upon, for the purpose of disposal of this appeal.
2. A complaint was filed by the complainant-appellant through P.W.1, the power-of-attorney holder against the first respondent alleging offence under Section 138 of the Negotiable Instruments act (‘the Act’, for short). As per the allegations in the complaint, complainant and accused are friends and distant relatives. The accused allegedly borrowed a sum of Rs. 2,00,000/- from the complainant at P.W. 1’s house, agreeing to repay the amount with interest in three months. But he failed to do so. Hence, on repeated demands, Ex. P2 was issued by him for discharge of the debt from the house of P.W.1 But, the cheque, on presentation to the bank, was returned unpaid for “insufficient funds” along with memo, Exhibit P3. A lawyer notice (the copy is Exhibit P5) was sent to the accused, Still, he did not repay the amount, and hence, after complying with the legal formalities, a complaint was filed against him.
3. To prove the complaint, P.Ws.1 to 3 were examined, Exhibits P1 to P8 and Exhibit X1 were marked. The accused did not adduce any oral evidence, but marked Exhibits D1 and D2. According to accused, he never borrowed any amount from the complaint nor did he issue any cheque to the complainant. He does not even know the complainant. This case is falsely foisted against him by the power-of-attorney holder of the complainant who is on inimical terms with him, on account of another transaction.
4. The accused set up a plea that he borrowed Rs. 25000/- from P.W.1, the ‘so called power of-attorney holder’ of the complainant and handed over two blank cheques to her as security. He discharged a part of that liability but, P.W.1 was not satisfied. She demanded for more money any went to the accused’s house with her husband and made unjustifiable demands. Following this, there was a quarrel between them from the accused’s house which ended up in an assault. The accused was injured in the incident and a case was registered by the police on his complaint against P.W.1 and her husband. Thereafter, P.W.1 misused the blank cheques given to her and filed two complaints against the accused. One was filed by PW.1 herself as the complainant; the other was filed by her, allegedly on behalf of her sister-in-law, as the power-of-attorney holder.
5. The Court below, after considering the evidence and other materials, found that the complainant did not have the financial capacity to pay Rs. 2,00,000/- to the accused. It was also held that it is probable that the accused issued two signed blank cheques as security to P.W.1, when he borrowed Rs. 25,000/- from her. But, P.W.1 falsely typed complainant’s name and other particulars in the cheque and presented it in the bank. The accused was acquitted of offence under Section 138 of the Act. The trial Court also found that this is a false and vexatious case, and issued summons to the complainant to show cause why she should not pay compensation to the accused, invoking Section 250 of the Code of Criminal Procedure (the Code, for short).
6. On a perusal of the records, I find that the definite case of the accused is that he did not issue any cheque in favour of the complainant and he had absolutely no transaction with her. They are not even known to each other. P.W.1 admitted that the complainant and accused were not know to each other. PW1’s evidence that the accused has some liabili
