This criminal appeal challenged the acquittal of an accused in a cheque dishonour case. The High Court held that the prosecution proved the execution of the cheque and the underlying debt, invoking statutory presumptions. The appeal was allowed, and the acquittal was set aside.
The acquittal is set aside and the trial court's judgment of conviction is restored.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
CRL.A.No.404 OF 2011(A)
AGAINST THE ORDER/JUDGMENT IN CRA 176/2009 DATED 12-01-2010 OF ADDITIONAL DISTRICT SESSIONS COURT,KOTTAYAM
AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 56/2011 DATED 24-01-2011 OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT/COMPLAINANT:
JOSEPH VARGHESE
JOE NIVAS, DEVAGIRI P.O., KANGAZHA, KOTTAYAM.
BY ADV. SRI.M.P.MADHAVANKUTTY
RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 P.J.ALEXANDER POLACKAL HOUSE, BEHIND POLICE STATION, CHANGANACHERRY P.O.,, KOTTAYAM.686101
2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
R1 BY ADV. SRI.P.M.NATESAN
R2 BY ADV. REKHA C NAIR, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.404 OF 2011(A) 2
J U D G M E N T
This is an appeal filed against the acquittal u/s 378(4) of the Criminal Procedure Code (Cr.P.C) in a proceeding initiated u/s 138 of the Negotiable Instruments Act (for short N.I Act) in S.T No.101/2007 on the file of the Judicial First Class Magistrate Court-I, Kottayam.
CRL.A.No.404 OF 2011(A) 3
as Criminal Appeal No.176/2009. The learned Sessions Judge after hearing found that the complainant failed to prove the execution of Ext.P1 cheque and, hence, no offence under Section 138 of the N.I Act was made out. Accordingly, the conviction and sentence passed against the accused by the trial court were set aside and the accused was acquitted. Challenging the same, the complainant preferred this appeal.
CRL.A.No.404 OF 2011(A) 4
21.07.2006, the accused took from him the original of Ext.P7 promissory note and issued Ext.P1 cheque. PW2, is the scribe and witness to Ext.P7. He was examined to prove Ext.P7 and the transaction covered by it. He deposed that Ext.P7 was prepared by him in his handwriting. He further deposed that Ext.P7 was issued when the accused borrowed a sum of Rs.40,000/- from the complainant.
CRL.A.No.404 OF 2011(A) 5
rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. Of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act.
CRL.A.No.404 OF 2011(A) 6
on private complaint, the pleadings as well as the evidence before the court have to be appreciated together. What is pleaded is that the accused issued the cheque in question towards the discharge of a legally enforceable debt. The explanation regarding the said legal enforceable debt has been given in the evidence. As such, there is absolutely no contradiction between the evidence and pleadings. PW2 has been examined to prove Ext.P7. It is true that Ext.P7 is the photostat copy only. But it is pertinent to note that the definite case of the complainant is that, at the time of the issuance of Ext.P1, he gave the original of Ext.P7 to the accused and the said original is with the accused. Hence, the photocopy of the same which has been marked as Ext.P7 can be admitted in evidence under Section 65(a) of the Evidence Act. The complainant has given evidence that the original of Ext.P7 is in the possession of the accused. Though it is not necessary in a criminal prosecution that the accused should give evidence by entering into the box, when a specific plea is taken by the complainant, the accused ought to have mounted the box and gave evidence that the original of Ext.P7 is not with him. PW2 clearly gave evidence that he was a scribe of Ext.P7. He identified his handwriting in Ext.P7. He deposed that Ext.P7 was issued at a time when the accused borrowed Rs.40,000/- from the complainant. Even though PW1 and PW2 were cross examined at length nothing tangible were extracted from their testimony to discredit their version regarding the transaction and issuance of Ext.P1 cheque. In Shaji [supra], the Single Bench of this Court held that, without proving the execution of the promissory note and consideration for that promissory note, it is not possible to prove the case of
CRL.A.No.404 OF 2011(A) 7
the complainant that the cheque was issued towards the payment of amount covered by the promissory note. It is not a case where the complainant has set up a case that the cheque in question was issued towards payment of amount covered by the promissory note. On the other hand, the case of the complainant is that the promissory note was taken back by the accused and the cheque was issued. The complainant uses Ext.P7 only as a piece of evidence to prove the original transaction. The prosecution case is built up on the original transaction and the cheque which was issued subsequently and not on Ext.P7 promissory note. That apart, in the case mentioned above, no attempt was made by the complainant therein to produce even the photocopy of the promissory note or to prove the same. The witness to the promissory note was also not examined. These were taken into consideration by the court against the complainant there in. But, it is a case where the complainant produced Ext.P7 as a secondary evidence and proved the same in accordance with law by calling a scribe/witness to it. From the evidence of PW1 and PW2, I am satisfied that the complainant has succeeded in proving the transaction as well as the execution of Ext.P1 cheque.
CRL.A.No.404 OF 2011(A) 8
rebut the said presumption available to the complainant under Section 139 of the N.I Act. No evidence has been adduced by the accused to substantiate that actually on an earlier occasion, he has borrowed some amount from the complainant and at that time a blank signed cheque was issued as security. In spite of the receipt of lawyer's notice, the accused did not send any reply also. There is absolutely no evidence or circumstances probabalising the defence set up by the accused.
CRL.A.No.404 OF 2011(A) 9
Sections 118(a) and 139 are in favour of the complainant and those presumptions were not rebutted by the accused. The trial court correctly analyzed the evidence and arrived at correct conclusion. On the other hand, the appellate court went wrong and committed illegality in acquitting the accused. The Supreme Court of India in Ravi Kapur v. State of Rajasthan [(2012) 9 SCC 284] has held that once a trial court has ignored the material piece of evidence and failed to appreciate the prosecution evidence in the correct perspective, then it would amount to failure of justice enabling the Appellate Court to interfere with the judgment of acquittal. The impugned judgment of acquittal, thus, cannot be sustained and is liable to be set aside.
In the result, the appeal is allowed.
(i). The judgment of acquittal passed in Crl.A No.176/2019 dated, 12th January, 2010 by the Court of Sessions of Kottayam is here by set aside.
(ii). The judgment of the Judicial First Class Magistrate I, Kottayam in S.T No. 101/2007 dated 25th March 2009 is restored.
DR.KAUSER EDAPPAGATH
RPS/ JUDGE
3 issues framed by the court
Whether the prosecution successfully proved the execution of the cheque and the existence of a legally enforceable debt to draw presumptions under Sections 118 and 139 of the Negotiable Instruments Ac
Whether the appellate court correctly acquitted the accused by holding that the execution of the underlying promissory note was not proved.
Whether the appellate court committed an error of law in acquitting the accused when the trial court found evidence sufficient to sustain conviction under the Negotiable Instruments Act.
Colour shows how this judgement treated each authority
Shaji v. Ignatious and AnotherDistinguished¶32
Shaji v. Ignatious and Another [2009 (2) KLT 491]
John K. Abraham v. Simon C. Abraham and AnotherRelied on¶45
John K. Abraham v. Simon C. Abraham and Another [2014(1) KLT 90]
Ravi Kapur v. State of RajasthanRelied on¶46
Ravi Kapur v. State of Rajasthan [(2012) 9 SCC 284] · Who else cites this
5 provisions across 3 enactments
JOSEPH VARGHESE
P.J.ALEXANDER
THE STATE OF KERALA
DR. KAUSER EDAPPAGATH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
