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HIGH COURT OF KERALA
C.S. DIAS, J
FINANCIAL CREDITS AND CHITS COMPANY(P)LT – Appellant
Versus
SIDHIQUE AND OTHERS – Respondent
CRL.A 1332 2011
Negotiable Instruments - Criminal Appeal - N.I. Act Sections [138, 139, 118] - The court emphasized the presumption under Sections 118 and 139 of the N.I. Act, stating the reverse onus lies with the accused to prove non-existence of debt after signature on cheque is established.
Fact of the Case:
The complainant alleged that the accused issued a cheque for a loan that was dishonored due to insufficient funds. The trial court convicted the accused, but the appellate court acquitted them citing forgery in loan documents.
Issues: Whether the appellate court's acquittal was justified given the established signature on the cheque and the lack of cogent defense evidence from the accused.
Ratio Decidendi: The presumption of consideration under Sections 118 and 139 of the N.I. Act mandates that once signatures are established, it shifts the onus to the accused to disprove liability.
Final Decision: The appeal was allowed, the appellate court's judgment was set aside, and the original conviction was upheld with a modified sentence.
ORDER
The appeal is filed questioning the legality and correctness of the judgment in Criminal Appeal No.204/2010 passed by the Court of the Additional Sessions Judge, Fast Track Court No.I, Thrissur (Appellate Court), reversing the judgment in C.C.No.422/2007 of the Court of the Judicial First Class Magistrate, Chavakkad (Trial Court), and holding the respondents 1 and 2 (accused) not guilty for the offence under Section 138 of the Negotiable Instruments Act (in short, 'N.I.Act'). For the sake of convenience, the parties are, referred to as per the status before the Trial Court.
2. The complainant had filed the above complaint against the accused. The complainant's case is that it is a company doing business in money lending. The accused had borrowed an amount of Rs.12,000/- from the complainant on the basis of Ext.P10 promissory note. In discharge of the said liability, the accused jointly issued Ext.P1 cheque for an amount of Rs.12,780/- in favour of the complainant. The cheque on presentation to the bank for collection got dishonoured by Ext.P2 memorandum due to insufficiency of funds in the bank account of the accused. Despite issuing Ext.P4 statutory lawyer notice to the accused and they receiving the same, they failed to pay the demanded amount. Hence, the accused committed the offence under Section 138 of the N.I.Act.
3. The learned Magistrate took cognizance of the offence. The accused denied the substance of accusation leveled against them. In the trial, the representative of the complainant was examined as PW1 and Exts.P1 to P13 were marked in evidence. The accused denied the incriminating circumstances put against them in the questioning under Section 313 of the Code of Criminal Procedure ( in short, 'Cr.P.C'). The 2nd accused and the Manager of the drawer's bank were examined as DWs 1 and 2 and Exts.D1 and D2 were marked through DW2 in evidence.
Trial Court Judgment
4. The learned Magistrate, after analysing the materials on record, found the accused guilty and convicted them for the offence under Section 138 of the N.I.Act and sentenced them to undergo simple imprisonment for a period of three months and directed them to jointly pay an amount of Rs.12,780/- as compensation to the complainant under Section 357(3) of the Cr.P.C., and in default to undergo simple imprisonment for a further period of three months. 5. Aggrieved by the said judgment, the accused filed Criminal Appeal No.204/2010 before the Appellate Court.
Appellate Court judgment
6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, arrived at a conclusion that, as Exts.P9 and P10 documents were forged and notwithstanding the fact that the drawer's signature on Ext.P1 tallying with Ext.B1 document, the accused are not guilty for the offence under Section 138 of the N.I.Act. Consequentially, the Appellate Court set aside the judgment of the Trial Court and acquitted the accused.
7. It is aggrieved by the said judgment, the present appeal is filed.
8. Heard; Sri.P.Ramachandran, the learned Counsel appearing for the appellant/complainant; Sri.P.Jayaram, the learned Counsel appearing for the respondents 1 and 2/accused and Smt.Seetha S., the learned Public Prosecutor appearing for the 3rd respondent.
9. The question is whether there is any irregularity or error in the judgment passed by the Appellate Court.
10. It is well settled that the Appellate Court should be slow in interfering with an order of acquittal. It is only when the conclusions arrived at by the court below is patently erroneous and perverse, the Appellate Court should interfere with an order of acquittal because an order of acquittal adds to the presumption of innocence in favour of the accused.
11. Keeping in mind the above principles, this Court proceeds to examine the criminal appeal.
12. The complainant's case is that, the accused has availed a loan from the complainant after executing Exts.P9 loan application, P10 promissory note and P11 v
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