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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 …. Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41045

 Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof  – when the complainant not able to

 

Parts of a cheque based on a UK example drawee...

Parts of a cheque based on a UK example drawee, the financial institution where the cheque can be presented for payment payee date of issue amount of currency drawer, the person or entity making the cheque signature of drawer Machine readable routing and account information (Photo credit: Wikipedia)

 

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 accusedApex court  set aside  the high court order s=          

 

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.

 

 

 

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.

 

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.

 

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.

 

Reportable

 

IN 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]

 

 

 

 

 
………….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]

 
New Delhi;
December 05, 2013.

 

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