P.P. Saji vs Ananda Kumar And Ors

The appellant is the complainant in S.T. No. 225/2005 on the file of the Judicial First Class Magistrate - I, Sulthan Bathery, a proceeding instituted against the first respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act. In the complaint presented on 26.10.2004, it is alleged that the first respondent had borrowed a sum of Rs.1,00,000/- from him for business purpose, agreeing to repay within one month. After one month, when the amount was demanded back, he told that he does not have ready cash with him, but amount is in deposit; accordingly cheque bearing No. 830454, dated 17.08.2004 drawn on Punnapra branch of the State Bank of Travancore, was signed and handed over to the appellant at Meenangadi. The cheque was presented for collection through Meenangadi branch of the South Malabar Gramin Bank, but it was returned on 01.09.2004 with the endorsement 'funds insufficient'. Then the appellant caused to issue a lawyer notice on 18.09.2004, which was received by the first respondent on 27.09.2004. As the amount was not repaid, he preferred the said complaint.

The complaint was taken on file as S.T. No. 225/2005 and the first respondent was summoned. He appeared and pleaded not guilty to the charge. Thereafter, the complainant was examined as PW1 and Exts. P1 to P6 were marked on his side. When examined under Section 313(1)(b) of the Criminal Procedure Code, the first respondent denied the allegations. Thereafter, he gave evidence as DW1. His brother was examined as DW2. After hearing counsel on both sides, by judgment dated 18.01.2008, the trial court found the first respondent guilty of offence punishable under Section 138 of the Act and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.1,00,000/-, in default to undergo simple imprisonment for two months. The first respondent assailed the said finding in appeal before the Sessions Court, Kalpetta. The learned Additional Sessions Judge - I, Kalpetta considered the appeal, by the impugned judgment dated 05.01.2011 in Crl. A. No. 18/2008, allowed the appeal, reversed the finding and acquitted the first respondent. Aggrieved by the said finding of the learned Additional Sessions Judge, the appellant initially filed Criminal Leave Petition No. 242/2011 and on obtaining leave, preferred this appeal under Section 378(4) of the Cr. P.C.

I heard the learned counsel for the appellant and also the learned counsel for the first respondent in detail.

According to the learned counsel for the appellant, there is only a question of borrowal and repayment. The oral testimony of the appellant as PW1 and supporting documents are sufficient to enter into a conviction against the first respondent. The complaint was preferred after giving the Ext.P4 notice, which was not replied nor the amount was repaid. The appellant has not received the reply notice shown as Ext.D2. A complaint as Ext.D1 was preferred after 21/2 years of instituting this complaint. It is a clear case of after thought. According to the learned counsel, the story of the first respondent stated while the PW1 was cross examined and the version in Ext.D2 are different. The first respondent has taken inconsistent stands. He has not disputed the Ext.P1 cheque; the signature in Ext.P1 is also admitted and therefore, the learned Sessions Judge went wrong in reversing the finding made by the trial court. The learned counsel is also skeptical about the non-examination of Surendran and Vincent, whose names appear in the evidence of the first respondent. The first respondent has not brought in best evidence before court and the appellant could disprove the version of the first respondent. On the other hand, according to the learned counsel for the first respondent, he is running a tea shop at his native place at Punnapra, whereas the appellant is an auto-consultant at Meenangadi in Wayanad District; previous acquaintance of the parties could not be proved and it is improbable that the first respondent had borrowed an amount from the appellant from a far of place, more than 400 kms away from his place. Even though the appellant had claimed that Rs.70,000/- of the amount was arranged from the bank, supporting documents were not produced. The complaint and even the chief affidavit lack particulars. The presumptions under Sections 118 and 139 of the Act are not available in favour of the appellant; the very complaint is incomplete, acquaintance between the parties is not proved and the first respondent has given a consistent case. According to the learned counsel, it is a false prosecution initiated at the instance of Vincent with whom DW2, the brother of the first respondent had transactions.

Even though it was stated by the learned counsel for the appellant that the appellant has not received the Ext. D2 reply notice, the affidavit in lieu of chief examination of the complainant as PW1 filed before the trial court alone is sufficient to falsify the statement. In the chief affidavit filed before the trial court on 24.09.2005, the appellant has stated that the first respondent had given a reply to the Ext.P4 notice after the institution of the complaint, that it contains false statement. In other words, the Ext.P4 was replied by the first respondent. Ext.D2 is dated 28.10.2004, whereas the complaint was presented on 26.10.2004. But the complaint was taken on file only on 28.01.2005 and summons was issued against the first respondent returnable by 26.03.2005. That means, though belated, the first respondent had sent a reply to the Ext.P4 notice. Such a reply was caused, before the court had taken cognizance of the offence and summoning the first respondent.

The complaint was filed as a simple case of money transaction. The appellant contended that the first respondent had borrowed an amount of Rs.1,00,000/-, for repayment of the same, Ext.P1 cheque was issued at Meenangadi. The first respondent on the other hand took the contention that he is a total stranger to the appellant, he had no acquaintance or monetary transaction with the appellant, that Ext.P1 was handed over in a signed blank form to his brother DW2 in connection with a transaction in which DW2 purchased a stage carriage from one Mohammed Koya; the bus was purchased after paying Rs.50,000/-, towards the rest of the consideration, the subject cheque and four other cheques of the first respondent, three cheques of DW2 and other documents were handed over to one Vincent, who agreed to arrange finance from Theethai Trade Links, Mannuthy, Thrissur. But later the finance was not arranged nor the documents were returned and the said Vincent, in collision with the appellant, was manipulating the documents to create a cause of action and thus a false case was instituted against the first respondent. It has also been tried to impress the court that the first respondent has instituted a complaint against the appellant and the said Vincent before the Judicial First Class Magistrate Court, Thrissur in 2007.

It is true that the Ext.P1 cheque bears the signature of the first respondent. But on the face of the document, other writings are in different hand. As rightly noticed by the learned Additional Sessions Judge, there are numerous incongruities in the case of the appellant. Firstly, the appellant could not establish that he had any acquaintance or association with the first respondent, who is living at a far away place at Punnapra, sufficient enough to lend a substantial amount of Rs.1,00,000/-, with no documents or security, whatsoever, at the time when the money was allegedly passed. It is here that the absence of particulars in the complaint and also in the chief affidavit of the appellant regarding the transaction assumes importance. Secondly, it is stated that after one month of the borrowal, the first respondent had gone to Meenangadi and handed over the Ext.P1 cheque. Here also unreasonableness writ large in the contention of the appellant. He said to have informed the appellant at Meenangadi that he does not have ready cash with him and then handed down the Ext.P1 cheque after making him believe that he has sufficient money in his bank account. It sounds improbable and incredible that a person had travelled more than 400 kms to hand over the cheque, leaving the cash in the bank account at Punnapra. In my assessment, the contention of the appellant sounds clearly artificial and incongruous. In such a setting, as rightly noticed by the learned Additional Sessions Judge, the trial court ought not to have entered the finding against the first respondent. In fact the judgment of the trial court convicting the first respondent lacks proper analysis of evidence and deliberation. The learned Magistrate has acted in a most mechanical manner, without proper application of mind. On the other hand, the learned Additional Sessions Judge has assessed the probabilities arising from the contentions of the parties, common course of natural events, human conduct and then came to the conclusion that the case of the first respondent is not probable.

The learned counsel for the appellant was harping on the inconsistencies in the case of the first respondent. In fact, I cannot perceive any serious inconsistency in the case of the first respondent. Moreover, the accused respondent is entitled to take consistent and inconsistent stands while defending a charge. Here the question is, given the materials produced by the appellant, the trial court was justified in drawing the presumption that the Ext.P1 was supported by consideration. After considering the totality of circumstances and evidence, I feel that the case of the first respondent is more probable and the appellant could not give evidence enabling the court to draw the statutory presumptions in his favour. Resultantly, the conviction was improper which has rightly been interfered with by the learned Additional Sessions Judge. There is absolutely nothing to interfere with the finding of the learned Additional Sessions Judge.

In the result, the appeal lacks merit and is dismissed.