C.M. Gopi vs K. Sajeev

K. Ramakrishnan, J.—The complainant in C.C. No. 326/2000 on the file of the Judicial First Class Magistrate Court-II, Perambra is the appellant herein.

The case was filed by the complainant/appellant herein against the first respondent alleging that he had issued Ext. P1 cheque for Rs. 70,000/- for discharge of the liability for the amount borrowed from him dated 27.12.1999 drawn on Canara bank and when the same was presented, it was dishonoured for the reason ''fund insufficient'' evidenced by Ext. P3 dishonour memo and the complainant issued Ext. P4 notice dated 31.1.2000 on the same day evidenced by Ext. P5 and it was returned by the accused and in spite of intimating the same, the accused had not paid the amount and thereby he had committed the offence punishable under Section 138 of the Negotiable Instruments Act(hereinafter referred to as the Act).

On getting summons from court, the accused appeared before court and particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, he himself was examined as PW 1 and Exts. P1 to P8 were marked on the side of the complainant. After closure of the complainant''s evidence, the accused was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant''s evidence and he had further stated that there was no transaction between the complainant and the accused and he had not issued the cheque to the complainant and this cheque and another cheque given to one Kunhikannan as security were misused and the present complaint was filed. In order to prove his case, the accused himself was gone to witness box and examined as DW 1 and Exts. D1 to D9 were marked on his side. After considering the evidence on record, the court below found that the case of the accused is more probable than the case of the complainant and there is no possibility of the accused issuing the cheque as claimed by the complainant and the complainant has failed to prove his case and the accused has discharged his burden and as such no offence under Section 138 of the Act has been committed and acquitted the accused. Aggrieved by the same, the present appeal has been preferred by the appellant, who is the complainant in the lower court.

Though notice was served on the first respondent, he did not appear.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

The counsel for the appellant submitted that the documents produced by the accused are not relating to the transaction between the appellant and the first respondent or binding on the complainant. Further, he had not taken any steps against the complainant for misusing his cheque. He had not filed any suit for declaration that the cheques mentioned are not valid and no action can be taken on that basis and he had not informed the bank about the same as well. Further, he did not send any reply notice as well. Further an appeal is pending against a cheque case, which was filed by one Balan which ended in acquittal and as such, that has not become final. So, under this circumstance, the court below was not justified in relying on those documents to come to a conclusion that he had discharged the burden and the presumption under Section 138 of the Act is always in favour of the complainant and the evidence adduced on the side of the accused is not sufficient to rebut the presumption and the lower court out to have convicted the accused instead of acquitting him.

Heard the learned Public Prosecutor.

The case of the complainant in the complaint was that the accused borrowed a sum of Rs. 70,000/- agreeing to repay the same within three months and after three months, when he demanded, the accused issued Ext. P1 disputed cheque. Further, his case was that the cheque was once presented and it was dishonoured for the reason ''fund insufficient'' and as requested by the accused, he has represented the cheque again and then also again dishonoured for the same reason and thereafter the appellant issued a lawyer notice and initiated prosecution by filing the complaint.

The case of the accused was one of total denial. The case of the accused was that there was no money transaction between the accused and the complainant and he had not borrowed any amount from the complainant and issued any cheque to the complainant. So, once the execution and delivery of the cheque is denied, the burden is on the complainant to prove those facts. Further, the accused need only to prove his case by preponderance of probabilities and he did not prove his case beyond reasonable doubt and he can either adduce independent evidence or rely on the weakness of the evidence of the complainant to establish his case.

The complainant was examined as PW 1 in the case. It was admitted by him that he knew one Kunhikannan, who was conducting Embassy hotel and also one V.P. Balan, who was conducting a shop in the name of Mayoori Fancy. He had also admitted that V.P. Balan was conducting a concern by name Mayoori Fancy and earlier he was working under him but according to the complainant, he is now conducting the shop. But, he admitted in the cross examination that licence of the shop is still in the name of Balan. He had also admitted that at the time when he gave the amount, he did not obtain any document from the accused as well. Further, his case was that he had paid the amount, which was with him, which he obtained by conducting a chitty in Gokulam chit funds and also the amount drawn from the Gramin Bank. But in the complaint, his case was that he was keeping that amount with him, which he borrowed for his business purpose and that amount was paid and when this was confronted to him, he had stated that what is stated in the complaint is not correct. His case was that he had borrowed the amount for his business purpose and it was the amount which was given to the accused. But when it was confronted, he had denied the same. Further, he had a case that he had withdrawn the amount from Gramin Bank and he was having the document. But he had not produced any document to show that on the particular date on which the amount was paid he had withdrawn the amount from the Gramin Bank as claimed by him. Especially when the accused had a case that the complainant had no possibility to pay the amount, then the burden is on the complainant to prove that he had the capacity to pay the amount as well. Though he had a case that he is conducting the shop, but had admitted that the licence is in the name of Balan under whom he was earlier working as an employee. All these things probablise the case of the accused that there is no possibility of the complainant to raise the amount as claimed by him and pay the same to the accused as claimed by him.

Further, it will be seen from the evidence of DW 1 and Exts. D1 to D9 produced by him that even during 1996, he had issued Ext. D1 notice to one Kunhikannan stating that he had entrusted two cheques with Nos. NJEAC 910031 and 910032 of Canara Bank, Perambra branch as security for the money transaction with him and in spite of the payment, he did not return the same and asked him to return those cheques and Ext. D2 is the postal receipt for sending that notice. This notice was dated 25.5.1996. Ext. D3 is the certified copy of the reply notice sent by Kunhikannan to the notice issued. Though he had denied possession of the cheques, he had mentioned that these cheques were with Balan and he had only stood as a mediator in the transaction between them. Ext. D4 is the complaint filed by the accused against Kunhikannan regarding this aspect and return of the cheque and when Ext. D4 complaint was referred by the police, he filed Ext. D5 protest complaint and that was taken on file by the court. All these things happened prior to the alleged transaction between the accused and the complainant. Ext. D6 is a notice sent by one Balan through the same counsel, who filed the present complaint also to the present accused demanding payment of Rs. 70,000/- on the basis of cheque No. NJEAC 910031 drawn on Canara Bank, Perambra branch said to have been issued by the accused in favour of Balan which is one of the cheques mentioned in Ext. D1, D4 and D5 documents. Ext. D7 is the reply notice sent by him to the said Balan wherein he had reiterated the things mentioned in Ext. D1 and this notice was dated 18th March, 1999, that too, long prior to the transaction between the accused and the complainant. Ext. D8 is the postal acknowledgment for serving the notice on the advocate, who issued the notice and Ext. D9 is the judgment in C.C. No. 210/1999 which was filed by N.K. Balan pursuant to Ext. D6 notice against the appellant using cheque No. 930031 and that ended in acquittal accepting the case of the accused that the cheque was not issued to Balan but the cheque given to Kunhikannan was misused and it is thereafter that the present complaint has been filed by the complainant. So all these things will go to show that the case of the accused is more probable than the case of the complainant and there is no possibility of any transaction between the complainant and the accused as claimed by the complainant in the complaint and the court below had appreciated the evidence and come to a conclusion that there is no possibility of any transaction as claimed by the complainant and acquitted the accused. Even if there are two views possible on the basis of the evidence and if the view taken by the court below is possible, then the appellate court should not substitute the second possible view and reverse the finding of order of acquittal passed by the court below unless the court is satisfied that the appreciation of evidence made by the court below is perverse and no such finding is possible on the evidence adduced by the complainant. But, in this case, as discussed above, the possibility of the accused having any transaction with the complainant is remote especially when the particulars of two cheques including the present cheque have been mentioned in Ext. D1 notice itself and if that be the case, there is no possibility of the accused giving the said cheque to the complainant as claimed by him. Further, the documents produced by the accused cannot be said to have been created by him for the purpose of this case because they were prior to the transaction said to have been taken place between the complainant and the accused as claimed by him in the complaint. So under the circumstances, I do not find any reason to interfere with the finding of the court below that there is no possibility of a transaction as claimed by the complainant and the accused to issue Ext. P1 cheque in discharge of any liability and he had discharged his burden and rebutted the presumption and acquitted the accused on that ground and the appeal lacks merit and the same is liable to be dismissed. I do so.

In the result, this appeal fails and the same is hereby dismissed. The order of acquittal passed by the court below against the accused in C.C. No. 326/2000 is hereby confirmed.

Office is directed to communicate a copy of this judgment to the court below at the earliest.