George Samuel vs Sivaraman and State of Kerala

Justice P. Bhavadasan

The accused was prosecuted for the offence punishable u/s 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs. 85,000/to the complainant u/s 357(3) of Cr.P.C., and in default, to undergo simple imprisonment for two months. In appeal, the appellate court confirmed the conviction and sentence.

According to the complainant, the accused had borrowed a sum of Rs. 45,000/-on 10.10.2002 and Rs. 40,000/- on 5.11.2002 and issued two post dated cheques dated 10.12.2002 for discharge of the debt. Both the cheques were presented for encashment and they were returned with the endorsement that the funds were insufficient in the account of the accused. Statutory notice issued to the accused, which was accepted by him, neither invoked any reply, nor was the amount paid. Hence the complaint was laid.

Cognizance of the offence was taken by the trial court. On appearance of the accused, particulars of the offence were read out to the accused, to which he pleaded not guilty and claimed to be tried. Therefore the complainant filed affidavit in lieu of chief examination as P.W.1 and he was cross-examined. Exts.P1 to P7(a) were marked from his side. After the close of the prosecution evidence, the accused was questioned u/s 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that there was no creditor-debtor relationship between him and the complainant. According to him, he subscribed to the two chitties wherein the complainant was the foreman and he bid the chity and while receiving the bid amounts, he issued blank cheque and blank signed stamp paper. Those documents were given as security and even though the chity transaction was completed, the documents were not returned. The accused filed a complaint before the Registrar of Chities. He contended that the cheques were not given as alleged in the complaint lodged by the complainant, but under different circumstances. He also pointed out that he had also filed a complaint before the C.I. of Police. He examined D.Ws.1 to 5 and Exts.D1 to D7 were marked. Exts.X1 to X4 are third party exhibits. Both the courts below on an appreciation of the materials before came to the conclusion that the offence has been made out and conviction and sentence as already mentioned followed.

Learned counsel appearing for the revision petitioner pointed out that there is nothing to show that the cheque was infact executed by the accused and in the absence of any such evidence, presumption under Sections 118 and 139 will not be taken aid of by the courts below. It is also pointed out that the appellate court has noticed that the pen used for writing the cheques differs from the one used for putting the signature on the cheques, and this substantiates the contention raised by the accused that blank cheques had been issued. It was also pointed out that, according to the complainant, the accused was a chronic defaulter of payment of instalments and if that be so, it is inconceivable that the complainant would have advanced further amounts to the accused. It was contended that even before the present complaint was filed, a complaint has been preferred before the Sub Registrar of Chities pointing out that blank cheques had been received by the complainant and they have not been returned. Subsequently a complaint had been filed before the police. These aspects would show the bonafides in the claim put forward by the accused. The courts below failed to appreciate these items of evidence in the proper perspective and that had resulted in miscarriage of justice.

At the first blush, the above submissions may look very attractive. But on a close scrutiny, they can be found to be without any merits whatsoever. The complainant has given evidence as P.W.1 and had Exts.P1 to P7(a) were marked. He admitted the chity transaction with the accused and produced Exts.P6(a) and P7(a) documents to show that at the time of granting the loan as alleged in the complaint by him, nothing was due as per the chity transactions. The Registrar of Chities, who conducted the enquiry found that the claim of the accused that blank cheques were given as security cannot be accepted. The officer concerned reported that there was no such practice in connection with chity transaction. Further, there is nothing to show that Exts.P6(a) and P7(a) are valid documents.

Apart from the above fact, if as a matter of fact cheques were given as security, after the close of the chity transaction even assuming that the complainant had not returned the cheques, atleast the accused could have intimated the Bank to stop payment of the cheques. He did not do that also.

Both the courts below have noticed that P.W.1 has categorically stated in his evidence that the particulars in the cheque were written by the accused in his presence and also signed in his presence. This version of P.W.1 stands unimpeached. As regards the complaint before the Registrar of Chities is concerned, it met with failure. As regards the police complaint is concerned, after investigation a refer report was filed and the accused had not taken any further steps in the matter and there was no further proceedings on the basis of the complaint filed by the accused.

More significant is the fact that though the accused was served with statutory notice, he did not feel it necessary to send reply to the same. If he had a case that he had no transactions as alleged by the complainant and that the cheques which he had been issued have been misused by the complainant, he would have utilized the first opportunity to put forward his case, but instead he chose to remain passive and silent. That goes a long way in establishing his culpability.

Again it is significant to notice that the accused was shy to mount the box. Even after the complainant has spoken about his case and had specifically stated that the accused had written the particulars in the cheque and signed before him, the accused did not feel it necessary to go into the box and depose that the hand writing contained in Exts.P1 and P2 cheques is not his hand writing.

It was the above circumstances which persuaded the courts below to come to the conclusion that the cheques were infact issued by the accused. One should remember that the signatures in the cheques were admitted and so also the issuance to the complainant, though under different circumstance. In the light of the specific averment in the complaint regarding the transaction, the accused should have given evidence to show that the cheques were not issued as spoken to by the complainant, but under different circumstances. For reasons best known to him, he did not choose to mount the box. Therefore both the courts below came to the conclusion that the cheques were infact executed by the accused and held that under the circumstances, the complainant is entitled to take the aid of Crl.R.P.364/2012. 9 presumption u/s 118 and 139 of the Negotiable Instruments Act. The presumption remains unrebutted.

On going through the judgments of the courts below, it could not be said that the findings are perverse. The findings have been entered into on an appreciation of the evidence in the case and there is no illegality, irregularity or impropriety in the findings of the courts below warranting interference under the revisional jurisdiction. The result is that this revision is without any merits and it is liable to be dismissed.

At this point of time, Learned Counsel appearing for the revision petitioner prays for some time to pay the compensation as ordered by the courts below in order to avoid default sentence.

In the light of the fact that the revision petitioner has expressed his readiness and willingness to pay the amount, it is felt that some time can be granted to him to pay the compensation amount.

In the result, while confirming the conviction and sentence passed by the courts below, the petitioner is granted three months'' time from today to pay the compensation as awarded by the courts below, failing which, the default clause as imposed by the courts below shall take effect.

The revision petition is disposed of as above.