Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof

Adv M Mohan 7th Dec 2013

Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof – when the complainant

 not able to say the date when the amount was given – when failed to produce

 source of income – when gave contradictory statement about filling of cheque

 whether by accused or by himself – when there is no pleading that cheque 

was filled with the consent of accused – mere lack of issuing a reply notice

 and mere non putting a suggestion that the cheque was a blank cheque 

are not countable points to over throw the positive admissions made by

 the complainant – Lower court rightly dismissed the complaint – 

High court wrongly with out assigning valid reasons convict the accused – 

Apex court set aside the high court orders 

= John K. Abraham …. Appellant VERSUS Simon C. Abraham & Another 

N THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2043 OF 2013

(@ SLP (CRL.) No.9505 of 2011)

John K. Abraham …. Appellant

 VERSUS

 

Simon C. Abraham & Another …. Respondents

 

J U D G M E N T

 

Fakkir Mohamed Ibrahim Kalifulla, J.

 

1. Leave granted.

2. This appeal is directed against the judgment of the High Court of

Kerala at Ernakulam dated 15th December, 2010 passed in Criminal

Appeal No.452 of 2004.

3. The issue involved in this appeal arises under Section 138 of the

Negotiable Instruments Act. The complaint was preferred by the

respondent No.1 before the Chief Judicial Magistrate, Pathanamthitta

alleging that appellant borrowed a sum of Rs.1,50,000/- from him and

issued a cheque for the said sum on 20.06.2001 drawn on Indian

Overseas Bank, Plankamon branch in discharge of the debt. It is the

further case of the respondent–complainant that when the cheque was

presented for encashment through Pathanamthitta District Co-operative

Bank, Kozhencherry branch, the same was returned by the bankers with

the endorsement ‘insufficient funds in the account of the accused’.

The respondent-complainant stated to have issued a lawyer’s notice on

14.07.2001, which was received by the appellant on 16.07.2001, but yet

there was no reply from the appellant. Based on the above averments

alleged in the complaint, the case was tried by the learned Chief

Judicial Magistrate.

 

4. The respondent herein was examined as PW.1 and Exhibits P-1 to P-6

were marked. None was examined on the side of the appellant. In the

questioning of the appellant made under Section 313 of Cr.P.C., the

appellant took the stand that his son took the cheque from him and

that if at all anything was to be recovered, it had to be made from

the son of the appellant, since the appellant had not borrowed any

money.

 

5. The learned Chief Judicial Magistrate after considering the oral and

documentary evidence led on behalf of the respondent-complainant, held

that the respondent-complainant was making a prevaricating statement

as regards the issuance of the cheque, that he was not even aware of

the date when the amount was said to have been borrowed by the

appellant, that there was material alteration in the instrument and,

therefore, the respondent failed to establish a case under Section 138

of the Negotiable Instruments Act. Consequently, the learned Chief

Judicial Magistrate found the appellant not guilty and acquitted him

under Section 255(1) of Cr.P.C. The respondent preferred the appeal in

the High Court of Kerala at Ernakulam and by the impugned order the

High Court reversed the judgment of the learned Chief Judicial

Magistrate, convicted the appellant and imposed the sentence to pay a

fine of Rs.1,50,000/- as compensation under Section 357(1) of Cr.P.C.

In default of making the payment of the fine amount, the appellant was

directed to suffer simple imprisonment for a period of three months.

 

6. We heard Mr. Romy Chacko, learned counsel for the appellant and Mr.

Jogy Scaria, learned counsel for the 2nd respondent. We also perused

the material papers placed before us, including the judgment of the

trial Court as well as the High Court. Having considered the above, we

are of the view that the High Court was in error in having reversed

the judgment of the trial Court.

7. When we examine the case of the respondent-complainant as projected

before the learned Chief Judicial Magistrate and the material evidence

placed before the trial Court, we find that the trial Court had noted

certain vital defects in the case of the respondent-complainant. Such

defects noted by the learned Chief Judicial Magistrate were as under:

a) Though the respondent as PW-1 deposed that the accused

received the money at his house also stated that he did not

remember the date when the said sum of Rs.1,50,000/- was paid

to him.

 

b) As regards the source for advancing the sum of Rs.1,50,000/-,

the respondent claimed that the same was from and out of the

sale consideration of his share in the family property, apart

from a sum of Rs.50,000/-, which he availed by way of loan

from the co-operative society of the college where he was

employed. Though the respondent stated before the Court below

that he would be in a position to produce the documents in

support of the said stand, it was noted that no documents

were placed before the Court below.

 

c) In the course of cross-examination, the respondent stated

that the cheque was signed on the date when the payment was

made, nevertheless he stated that he was not aware of the

date when he paid the sum of Rs.1,50,000/-.

d) According to the respondent, the cheque was in the

handwriting of the accused himself and the very next moment

he made a contradictory statement that the cheque was not in

the handwriting of the appellant and that he (complainant)

wrote the same.

 

e) The respondent also stated that the amount in words was

written by him.

 

f) The trial Court has also noted that it was not the case of

the respondent that the writing in the cheque and filling up

of the figures were with the consent of the accused

appellant.

 

8. In light of the above evidence, which was lacking in very many

material particulars, apart from the contradictions therein, the trial

Court held that the appellant was not guilty of the offence alleged

against under Section 138 of the Negotiable Instruments Act and

acquitted him.

 

9. Keeping the above factors in mind, when we examine the judgment

impugned in this appeal, we find that the High Court committed a

serious illegality in reversing the judgment of learned Chief Judicial

Magistrate. While reversing the judgment of the trial Court, what

weighed with the learned Judge of the High Court was that in the 313

questioning, it was not the case of the appellant that a blank signed

cheque was handed over to his son and that even in the cross-

examination it was not suggested to PW-1 that a blank cheque was

issued. The High Court was also persuaded by the fact that the

appellant failed to send any reply to the lawyer’s notice, issued by

the respondent. Based on the above conclusions, the High Court held

that the presumption under Sections 118 and 139 of the Negotiable

Instruments Act could be easily drawn and that the appellant failed to

rebut the said presumption. On that single factor, the learned Judge

of the High Court reversed the judgment of the trial Judge and

convicted the appellant. It has to be stated that in order to draw the

presumption under Section 118 read along with 139 of the Negotiable

Instruments Act, the burden was heavily upon the complainant to have

shown that he had required funds for having advanced the money to the

accused; that the issuance of the cheque in support of the said

payment advanced was true and that the accused was bound to make the

payment as had been agreed while issuing the cheque in favour of the

complainant.

10. Keeping the said statutory requirements in mind, when we examine the

facts as admitted by the respondent-complainant, as rightly concluded

by the learned trial Judge, the respondent was not even aware of the

date when substantial amount of Rs.1,50,000/- was advanced by him to

the appellant, that he was not sure as to who wrote the cheque, that

he was not even aware when exactly and where exactly the transaction

took place for which the cheque came to be issued by the appellant.

Apart from the said serious lacuna in the evidence of the complainant,

he further admitted as PW.1 by stating once in the course of the cross-

examination that the cheque was in the handwriting of the accused and

the very next moment taking a diametrically opposite stand that it is

not in the handwriting of the accused and that it was written by the

complainant himself, by further reiterating that the amount in words

was written by him. We find that the various defects in the evidence

of respondent, as noted by the trial Court, which we have set out in

paragraph 7 of the judgment, were simply brushed aside by the High

Court without assigning any valid reason. Such a serious lacuna in the

evidence of the complainant, which strikes at the root of a complaint

under Section 138, having been noted by the learned trial Judge, which

factor was failed to be examined by the High Court while reversing the

judgment of the trial Court, in our considered opinion would vitiate

the ultimate conclusion reached by it. In effect, the conclusion of

the learned Judge of the High Court would amount to a perverse one

and, therefore, the said judgment of the High Court cannot be

sustained.

11. Having regard to our above conclusion, this appeal stands allowed. The

order impugned is set-aside, the conviction and sentence imposed on

the appellant is also set aside.

 

………….……….…………………………..J.

[Surinder Singh Nijjar]