K.S.Isak vs State Of Kerala

Johnson John, J

This appeal is filed against the judgment dated 29.05.2006 in Crl. Appeal No. 117 of 2005 of the Additional District and Sessions Judge, Kozhikode, whereby judgment dated 12.01.2004 of the Judicial First Class Magistrate-II Thamarassery in C.C. No. 402 of 2003 was set aside by finding the accused/respondent not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’).

The appellant/complainant filed the complaint under Section 138 of NI Act on the allegation that the accused borrowed Rs.1,70,000/-on 08.03.2003 and issued Exhibit P1 cheque dated 01.06.2003 in discharge of the debt, and subsequently when the cheque was presented for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of statutory notice, the accused failed to pay the cheque amount.

In the trial court, the complainant was examined as PW1 and Exhibits P1 to P12 were marked. From the side of the accused, DWs 1 to 3 were examined and Exhibits D1 to D5 were marked.

After considering the evidence on record and hearing both sides, the trial court found the accused guilty of the offence punishable under Section 138 of the NI Act and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,70,000 and in default of payment of fine, to undergo simple imprisonment for 3 months. It is also ordered that the fine amount, if realised, shall be paid to the complainant under Section 357(3) Cr.P.C.

As per the impugned judgment in Crl. Appeal 117 of 2005 of the Additional District and Sessions Judge, Kozhikode, the judgment of the trial court was set aside on the ground that Exhibit P1 cheque was not issued for discharging a legally enforceable debt and that the accused has succeeded in rebutting the presumption under Sections 118 and 139 of NI Act in favour of the complainant.

Heard Sri. P. R. Sreejith, the learned counsel for the appellant, Sri. T.G. Rajendran, the learned counsel for the respondent and Sri. Sanal P. Raj, the learned Public Prosecutor.

The learned counsel for the appellant argued that the execution of the cheque and the signature is not disputed and that the evidence from the side of the defence that the complainant was an employee under the accused and that Exhibit P1 was a blank cheque issued for settling the claim of one K.K. Vijayan, who was another employee under the accused and that the said chqeue was misused and presented, is not supported by any reliable evidence and that Exhibit D4 petition relied on by the first appellate court is a fabricated document and therefore, the impugned judgment is liable to be set aside.

The learned counsel for the first respondent/accused argued that the evidence of DWs 2 and 3 and Exhibit D1 to D4 would clearly show that Exhibit P1 cheque was issued prior to Exhibit D4 petition dated 15.01.2003 and that the appellant/complainant has no case that any amount was due from the accused to the complainant prior to 15.01.2003 and that it can be seen from Exhibit D4 that Exhibit P1, cheque bearing CC No. 033167 of Sulthan Bathery Co-operative Urban Bank Limited, was entrusted by the accused to the complainant in connection with the payment of the wages of one K.K. Vijayan, who is the petitioner in Exhibit D4 and therefore, there is no valid ground to interfere with the impugned judgment of the first appellate court.

It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence.

The specific case of the accused/first respondent is that the complainant was an employee under him and that Exhibit P1 cheque was entrusted to the complainant to settle the claim of one K.K. Vijayan, who was also an employee of the accused. The learned counsel for the first respondent pointed out that the evidence of PW1 in cross examination regarding his acquaintance with K.K. Vijayan, employee of the toddy shop, and K.N. Sasi, the licencee of the toddy shop, is vague and contradictory. In the beginning portion of the cross examination, PW1 admitted that K.N. Sasi was the licencee of the toddy shop Nos. 28 and 29 of the Bathery Range and that himself and the accused were working in the said toddy shop.

PW1 also stated that the accused was the owner and he was one of the employees in the toddy shop. But, in another part of the cross examination, PW1 stated that a toddy shop licencee with the name ‘K.N. Sasi’ is not known to him and that a liquor shop employee with the name ‘Vijayan’ is also not known to him. PW1 denied the suggestion that Exhibit P1 cheque was entrusted to him by the accused in connection with payment of wages of the employee Vijayan and that the said Vijayan has filed a petition in Pulpally Police Station in that connection.

DW2 was a Head Constable working in Pulpally Police Station and the evidence of DW2 and Exhibit D4 would show that one K.K.Vijayan, who was an employee of a toddy shop at Bathery, filed Exhibit D4 petition before Pulpally Police Station against the complainant and the accused herein as respondents 2 and 1 respectively and that it is stated in Exhibit D4 that blank cheque bearing C.C. No. 033167 of Sulthan Bathery Co-operative Urban Bank Ltd. was entrusted by the first respondent to the second respondent in connection with the payment of wages to the petitioner and when the petitioner demanded the amount, the 2nd respondent told him that the said cheque is lost and in spite of approaching the first respondent for the amount, he has not received the amount and that the respondents are deliberately evading the payment due to him.

The petitioner in Exhibit D4 is examined as DW3 and he deposed in tune with the allegations in Exhibit D4 complaint and according to DW3, the police summoned the respondents in Exhibit D4 complaint to the Police Station and there the accused herein paid the amount to DW3 and settled the matter.

Even though the learned counsel for the appellant argued that Exhibit D4 is a document fabricated for the purpose of this case, it is pertinent to note that nothing is brought out in the cross examination of DWs 2 and 3 to indicate that Exhibit D4 is a fabricated document. The learned counsel for the first respondent also pointed out that the petition number in the petition register maintained in the Police Station is specifically mentioned in Exhibit D4 and the fact that the complainant was an employee under the accused and that he was managing the toddy shop of the accused as an Accountant-cum-Manager, is not in dispute and the same is also proved by Exhibit D1, account book, and Exhibit D2, bank computer extract.

I find no reason to disagree with the finding in the impugned judgment that the evidence of DWs 2 and 3 and Exhibit D4 would show that Exhibit P1 cheque bearing CC No. 033167 was handed over by the accused to the complainant to settle the claim of DW3 and therefore, the accused has succeeded in rebutting the presumption in favour of the complainant under Sections 118 and 139 of the NI Act. Therefore, in the absence of any reliable evidence to show that Exhibit P1 cheque was issued for discharging a legally enforceable debt from the side of the accused to the complainant, I find no reason to interfere with the finding of the first appellate court and therefore, this appeal, which is devoid of merit, is liable to be dismissed by confirming the impugned judgment.

In the result, this appeal is dismissed.