Suresh Rao. A.L. vs Haris P.A. and The State of Kerala

Justice V.K. Mohanan, J.—The complainant in a prosecution for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I.Act'') is the appellant since he is aggrieved by the judgment dated 8.9.2004 in C.C. No. 303 of 1998 of the court of Chief Judicial Magistrate-Kasarasgod, by which the learned Magistrate acquitted the accused u/s 255(1) of the Cr.P.C.

The case of the appellant/complainant is that the accused borrowed a sum of Rs. 1,50,000/-from him and towards the discharge of the said liability the accused issued Ext.P1 cheque and the same was dishonoured when presented for encashment and though statutory notice was sent to the accused, no amounts was paid and therefore the accused has committed the offence. During the trial, the complainant was examined as PW1. The trial court initially by its judgment dated 18.5.2001 in C.C. No. 303 of 1998, convicted the accused u/s 138 of NI Act and sentenced him to undergo simple imprisonment for 9 months. Against the above judgment, the accused preferred Crl.A. No. 121 of 2007 and the court of Sessions, Kasaragod, by its judgment dated 20.9.2003 in the above appeal, set aside the conviction and sentence imposed on the accused and remanded the matter back to the trial court with the following findings and direction :

To substantiate his defence, in the present case, the accused has produced gold loan cards purported to have been issued by the financing concern conducted by the complainant but they were not admitted in evidence without assigning any reason. The complainant it is to be noticed when examined as PW1 has flatly denied of having given any gold loan from his financing concern to the accused. That itself is a matter to be gone into in the facts and circumstances involved in the case. The authenticity and the evidentiary value of the cards produced by the accused has to be considered, for which an opportunity should be given to the accused to recall the complainant and further cross examine him with reference to the cards produced. Conviction of the accused imposed by the court below in the above circumstances is liable to be set aside and the case remitted for fresh disposal after affording further opportunity to both sides to prove their respective case.

It is thereafter the learned Magistrate passed the impugned judgment. Thus in the second judgment, the trial court has found from the unchallenged evidence of DW1 that, it was rightly held that Ext.P1 cheque was issued by the accused in respect of his transaction with Pooja Financiers and it is further found that the said evidence itself disproved the claim set up by the complainant and consequently held that Ext.P1 is not issued to the complainant in respect of the alleged transaction mentioned in the complaint. Accordingly, the trial court has found that the accused is not guilty of the offence. It is the above findings now challenged in this appeal.

I have heard Adv. T.G. Rajendran, Learned Counsel for the appellant and Adv. T.B. Shajimon Learned Counsel appearing for the respondent.

The Learned Counsel for the appellant vehemently submitted that the accused has miserably failed to produce any documents or materials to show that the cheque in question was handed over to Pooja FinancieRs. Counsel submits that, if the claim of the accused is correct that he had availed gold loan from the said financiers, definitely there would have been some documents to prove such fact, but during the trial of the case, none of such documents was produced and as such, the accused has miserably failed to substantiate his case and failed in making a probable case. Therefore, according to the appellant''s counsel, the findings of the court below is incorrect and not supported by any evidence or materials.

On the other hand, the counsel appearing for the respondent submitted that from the very beginning, the specific case of the defence was that the accused has no connection with the complainant and no amount was availed from him as claimed by the complainant. The counsel submits that during the cross examination of PW1 and at the time of 313 examination of the accused, it is brought on record to the effect that the complainant is one of the partners of Pooja Financiers, from where the accused availed gold loan and while availing such loan, blank cheque was given as security, and the said blank cheque was misused by the complainant, who is the partner of the said institution. Thus, according to the counsel, the accused has succeeded in discharging his burden in rebutting the presumption. It is the further submission of the Learned Counsel for the respondent that, the learned Magistrate of the trial court opted to accept the case of the accused and the learned Magistrate has assigned convincing reasons based upon the evidence and materials on record and therefore there is no scope for any interference on such findings.

I have carefully considered the arguments advanced by the counsel for the appellant as well as by the respondent and I have perused the judgment of the court below. I have also scrutinised the deposition of PW1 and DW1. In the light of the arguments advanced by the counsel for the appellant as well as the respondent and in the light of the facts and circumstances involved in the case, especially on the basis of the evidence on record, the question to be considered is whether the findings of the court below is justified in acquitting the accused.

The specific case of the complainant is that the accused borrowed a hand loan of Rs. 1,50,000/-from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 18.3.1998. To prove the above claim, the complainant himself mounted to the box and got examined as PW1 and produced Exts.P1 to P5. No other witness was examined for the complainant. Ext.P1 is the cheque in question and Exts.P2 and P3 are the memos connected with the dishonour of the cheque and Ext.P4 is the copy of the demand notice and Ext.P4 is the postal acknowledgment. Thus to prove the transaction and the issuance of the cheque, the only evidence available on record is that of the deposition of PW1. The specific case of the accused is that he had no transaction with the complainant and no amount was obtained from him and Ext.P1 cheque is the one which he entrusted with Pooja Financiers when he availed gold loan from that financiers, of which the complainant is one of the partneRs. Thus the specific case of the accused is that, by misusing the blank cheque given as a security, the complainant who is one of the partners of the said institution, filed the present complaint. As I indicated earlier, though initially the trial court has found the accused guilty, the said findings and the sentence was set side by the appellate court by judgment dated 20.9.2003 in Crl.A. No. 121 of 2001 and remanded the matter back to the trial court for the purpose which I indicated earlier. When PW1 was examined, no details are given as to the transaction which he claimed. The exact date of the availing of the loan is not mentioned during his chief examination. Though he had stated that he had acquaintance with the accused, no details are given. According to the complainant, an amount of Rs. 1,50,000/-was given to the accused without claiming any interest. Admittedly, the complainant is a partner of Pooja Financier which engaged in the financial transaction. But the evidence of the complainant is not sufficient to hold that the acquaintance of the complainant with the accused was so thick, so as to give an amount of Rs. 1,50,000/-without claiming any interest. When the complainant is involved in conducting a financial institution, it is quite unbelievable that he had parted an amount of Rs. 1,50,000/-to a person with whom he had no much friendship or acquaintance, that too without claiming any interest. When we are considering the merits of the case, we have to appreciate the contention of the defence, in the background of the above facts and claim of the complainant.

During the cross examination of PW1, he has admitted that he is the partner of Pooja Financiers and he had paid the amount to the accused, one month in advance from the date of the cheque and no interest was claimed. He had also stated that the cheque was given when the amount was paid. During the further cross examination, PW1 has stated that Pooja Financiers, of which he is a partner, gave a gold loan for which there is a separate register. He had also admitted that he can produce that register before the court, for which there is no difficulty at all. When PW1 was shown certain receipts allegedly issued from the Pooja Financiers, he denied the same. The trial court in its second judgment, after an elaborate discussion has found that, the bare statement that contained in the affidavit filed by the complainant denying the documents connected with the gold loan, which was availed in the Pooja Financiers, were destroyed cannot be swallowed. In this juncture, it is relevant to note that during the cross examination of PW1, he had categorically admitted that the documents connected with the loan transaction between the accused and the Pooja Financiers were available in the said financial institution. But when the accused filed a petition to produce those documents, PW1 deviating from his earlier stand, filed an affidavit stating that those documents were destroyed by white-ants. Under the above circumstances, the only presumption that can be drawn is that, if those documents were produced, it will go against the complainant and that is why an affidavit is filed simply stating that those documents were destroyed by white-ants. It is also relevant to note that on the basis of the remand order passed by the appellate court, when the complainant was further cross examined and shown the receipts issued from the Pooja Financiers, he denied the same.

In this case it is pertinent to note that the accused himself was mounted to the box and got examined as DW1 and during his examination, he had deposed about the transaction with the Pooja Financiers and stated that Ext.P1 cheque was given to Pooja Financiers as a blank one, connected with the loan availed from there. But DW1 was not cross examined effectively and as rightly observed by the learned Magistrate, the cross examination was concluded with three questions, among which one of the questions put to the accused is that he has not produced the receipts connected with the gold loan. But it is relevant to note that after the remand of the matter, when PW1 was confronted by producing receipts issued from the Pooja Financiers, PW1 simply denied the same. Thus it can be seen that when the accused was cross examined on behalf of the complainant, it was put to him that the receipts connected with the gold loan were not produced and when the matter was remanded and when PW1 was confronted with the receipts issued from the Pooja Financiers, the very same complainant denied the same. It is also relevant to note that though the accused has filed an application to produce the documents, connected with the gold loan of the accused with the Pooja Financiers, the complainant though initially claimed that such documents were available, turn out from that stand, and had filed an affidavit stating that those documents were destroyed by white-ants. Thus while denying the documents produced by the accused, the complainant has also suppressed material documents from the scrutiny of the court. In a decision reported in Krishna Janardhan Bhat Vs. Dattatraya Hegde [2008 (1) KLT 425 (SC) ], the Apex court has held that, "an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records." It is further held that, "in a criminal case whereas prosecution has proved the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is ''preponderance of probabilities''." It was further held that, "inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies." On an application of the above dictum in the facts and circumstances involved in the case on hand, according to me, the defence has succeeded in making out a probable case and the complainant has miserably failed to prove the case against the accused beyond reasonable doubt.

In the light of the facts and circumstances involved in the case and the discussion, and the evidence and materials referred to above, I am of the view that, the trial court is fully justified in its finding and acquitting the accused.

Therefore, there is no merit in this appeal and accordingly, the same is dismissed.