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2024 Supreme(Online)(KER) 33137
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 16TH DAY OF OCTOBER 2024 / 24TH ASWINA, 1946 CRL.A NO. 685 OF 2016 AGAINST THE JUDGMENT DATED 30.04.2016 IN ST NO.1505 OF
2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHOTTANIKKARA.
(CRIMINAL LEAVE PETITION NO.203 OF 2016 DATED 07/07/2016)
APPELLANT/PETITIONER/COMPLAINANT:
REJI PAUL, AGED 40 YEARS, S/O. PAULOSE, OLANGATTU HOUSE, KANINADU P.O, ERNAKULAM DISTRICT.
BY ADV SRI.PAUL K.VARGHESE RESPONDENT/RESPONDENTS/ACCUSED:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2 V.K. JAYA GOPI, AGED 45 YEARS, USHAS, K. MURALI ROAD, KUMARANASAN NAGAR, KOCHI-20, (WITHIN THE LIMITS OF KADAVANTHARA POLICE STATION).
BY ADVS.
JACOB CHACKO MATHEWS JOSEPH(K/715/2013)
VIPIN NARAYAN, GOVERNMENT PLEADER (SR)
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
07.10.2024, THE COURT ON 16.10.2024 DELIVERED THE FOLLOWING:
C.S.SUDHA, J.
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Criminal Appeal No.685 of 2016 ------------------------------------------------------
Dated this the 16th day of October 2024
SRI.PAUL K.VARGHESE, JACOB CHACKO MATHEWS JOSEPH(K/715/2013), VIPIN NARAYAN, GOVERNMENT PLEADER (SR)
The issuance of a cheque creates a presumption of liability under the Negotiable Instruments Act, which the accused must rebut to avoid conviction.
Headnote:
Negotiable Instruments - Cheque Dishonour - Negotiable Instruments Act, 1881 - Sections 138, 118, 139 - The court found that the complainant established the issuance of the cheque in discharge of a legally enforceable debt, shifting the burden to the accused to disprove the presumption of liability.
Fact of the Case:
The complainant lent ₹18,00,000 to the accused, who issued a cheque for repayment. The cheque was dishonoured due to insufficient funds, leading to a complaint under Section 138 of the Negotiable Instruments Act. The trial court acquitted the accused, prompting the complainant to appeal.
Finding of the Court:
The appellate court found that the trial court erred in acquitting the accused, as the complainant had established the cheque was issued for a legally enforceable debt, and the accused failed to rebut the presumption of liability.
Issues: Whether the trial court's acquittal of the accused was justified given the evidence presented by the complainant.
Ratio Decidendi: The court held that once the complainant established the issuance of the cheque, the burden shifted to the accused to disprove the presumption of liability under Sections 118 and 139 of the N.I. Act.
Final Decision: The appeal is allowed; the accused is found guilty under Section 138 of the N.I. Act and sentenced to imprisonment and a fine.
JUDGMENT
This appeal under Section 378(4) Cr.P.C., has been filed by the complainant aggrieved by the judgment dated 30/04/2016 in S.T.No.1505/2015 on the file of the Court of the Judicial First Class Magistrate, Chottanikkara by which the 2nd respondent/accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act). The parties in this appeal will be referred to as described in the private complaint filed before the trial court.
2. The allegations in the complaint are:- the complainant and accused are friends. The accused borrowed an amount of ₹18,00,000/- from the complainant on 07/09/2011 and in discharge of the same issued Ext.P1 cheque dated 27/04/2012 drawn on the Axis Bank Ltd., Kochi in favour of the complainant. On 27/04/2012 when Ext.P1 cheque was presented before the bank for collection, the same was dishonoured due to insufficient funds in the account of the accused. The complainant issued Ext.P3 lawyer notice dated 18/05/2012 to the accused demanding payment of the amount in Ext.P1 cheque. The accused received the notice on 19/05/2012, which is evident from Ext.P6 acknowledgment card. The accused instead of repaying the amount has sent Ext.P4 reply notice dated 02/06/2012 raising untenable contentions and hence the complaint.
3. When the accused appeared before the trial court, copies of the complaint and connected records were furnished to him. Particulars of the offence was read over and explained to the accused to which he pleaded not guilty. PW1 was examined and Exts. P1 to P8 were marked on the side of the complainant. After the evidence of the complainant was over, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence let in by the complainant. The accused denied all those incriminating circumstances and maintained his innocence. He also gave a statement in writing contending that he had borrowed an amount of ₹50,000/- from the complainant; at the time of borrowal he had given three blank signed cheques and one blank stamp paper to the complainant; that in discharge of the borrowed amount, he had remitted ₹20,620/- on 20/12/2010; ₹15,000/- on 14/01/2011 and thereafter remitted the entire balance amount along with interest and thus he has repaid an amount ₹75,000/- to the complainant, which was deposited in the accounts maintained by the complainant with the ICICI Bank, Thripunithura branch as well as through the Kadavanthra branch. Though the amount was repaid, the complainant never returned the blank signed cheques and stamp paper. The present false complaint was filed by misusing one of the blank cheques given as security. DW1 to DW3 were examined and Exts.D1 and X1 to X7 were marked on behalf of the accused to substantiate his case.
4. The trial court on a consideration of the oral and documentary evidence and after hearing both sides found that the complainant had failed in establishing that Ext.P1 cheque had been issued by the accused in discharge of a legally enforceable debt and thus acquitted the accused under Section 255(1) Cr.P.C. Aggrieved, the complainant has come up in appeal.
5. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the trial court calling for an interference by this court.
6. It was submitted by the learned counsel for the complainant/appellant that in spite of ample materials coming on record, the trial court grossly erred in acquitting the accused. In support of his arguments reference was made to the dictums inUttam Ram v. Devinder Singh Hudan, 2019 (4) KLT OnLine 2043 (SC); Raju M.Thomas v. State of Kerala , 2021 (1) KLT 787 ; Alka Khandu Avhad v. Amar Syamprasad Mishra, 2021(2) KLT 421 (SC); Ravi Prasad v. Chithra P. Nair , 2023 (1) KLT 1153; Rajmohan v. Chandrika Shaji , 2023 (2) KLT 758 ; ; Aaremsky Sports and Fitness v. Sadanandan, 2024 (1) KLT 834; Sadasivan v.
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