(2012) 271 KLR 149 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 24TH DAY OF NOVEMBER 2011/3RD AGRAHAYANA 1933 Crl.Rev.Pet.No. 324 of 2002 ( ) ------------------------------- CRA.835/2001 of COURT OF ADDL.SESSIONS JUDGE, N.PARAVUR CC.542/1998 of J.M.F.C.-II, ALUVA REVISION PETITIONER(S)/APPELLANT/ACCUSED:: ----------------------------------------- M.O.SAJEEVAN, ANAKUZHIKKATTIL HOUSE, NOCHIMA, N.A.D. P.O., ALUVA. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:: ---------------------------------------- 1. V.M.ABBAS, S/O.MUHAMMED, VADAKKUMMURY VEEDU, ALUVA WEST VILLAGE, MUTTAM THAIKKATTUKARA, ALUVA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM. BY ADV. SRI.T.A.UNNIKRISHNAN FOR R1 BY P.P.SRI.K.K.SAIDALAVI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.T.RAVIKUMAR, J. ---------------------------- Crl.R.P.No.324 of 2002 ---------------------------- Dated 24th November, 2011 Head Note:- Negotiable Instruments Act, 1881 - Sections 138 & 139 - Whether admission of the signature in a cheque amounts to admission of execution of the cheque so as to attract the presumption? Held:- Admission of signature in a cheque would not amount to admission of execution of the said cheque. In view of the admission of the signature in the cheque would not absolve the complainant from his onus to prove the fact that the cheque in question was drawn and executed by its maker. Negotiable Instruments Act, 1881 - Sections 138 & 139 - Whether for a successful prosecution of the offence under N.I. Act the complainant should prove the existence of a legally enforceable debt? Held:- The conviction mainly relying on the presumption available under section 139 of the N.I. Act, on account of the failure on the part of the complainant to prove that there was a legally enforceable debt cannot be sustained. When the very transaction itself is disputed and some evidence to that effect was adduced by the accused, a conviction merely based on the presumption available under section 139 of the N.I. Act cannot be sustained. The complainant has to be saddled with the liability to prove that there was a legally enforceable debt between the complainant and the accused and it is for discharging the said debt that the cheque in question was drawn and executed. When the accused had adduced evidence capable of casting doubt with respect to the case of the complainant the complainant cannot solely rely on the presumption available under Section 139 of the N.I. Act whilst he has to adduce evidence to prove existence of a legally enforceable debt and also the fact that the cheque in question was drawn and executed for discharging the said debt owing to him. ORDER Whether admission of the signature in a cheque amounts to admission of execution of the cheque so as to attract the presumption under section 139 of the Negotiable Instruments Act (for short "N.I. Act") and whether for a successful prosecution of the offence under section 138 of the N.I. Act the complainant should prove the existence of a legally enforceable debt are the questions that crop up for consideration in this revision petition. The accused in C.C.No. 542/1998on the file of the Judicial First Class Magistrate Court-II, Aluva is the revision petitioner and the complainant therein is the first respondent herein. This revision petition has been filed assailing the conviction entered and the sentence imposed against him concurrently, by the courts below, under section 138 of the Negotiable Instruments Act. The facts, in succinct, necessary to answer the aforesaid questions are as hereunder:- The case of the first respondent/complainant is that the revision petitioner had borrowed a sum of Rs.1,05,000/- from him for business purpose. When the first respondent demanded for repayment of the said amount, the revision petitioner issued Ext.P1 cheque for Rs.1,05,000/- dated 10.2.92 drawn on Syndicate Bank, Kalamassery. When that cheque was presented for collection, it was dishonoured. Pursuant to its dishonouring, Ext.P4 lawyer notice was sent. Ext.P5 would reveal the acknowledgment of the same. Within the statutorily permitted period the revision petitioner failed to effect repayment of the amount covered by Ext.P1 cheque. After following the statutory requirements, the first respondent filed the complaint against the revision petitioner raising the aforesaid allegations. 2. Before the trial court the first respondent was examined as PW1 and Exts.P1 to P7 were marked on the side of the prosecution. On the side of the defence DWs 1 and 2 were examined and there was no documentary evidence. 3. Essentially, the contention of the revision petitioner was that there was no transaction at all between himself and the first respondent herein. DWs 1 and 2 were examined to support his case. The learned Magistrate, after appreciating the materials produced, relying on the decision of this court in George V. Mohammed reported in 1999 (2) KLT 401 found that the first respondent is entitled to bank upon the presumption under section 139 of the N.I. Act and accordingly found that the cheque in question was issued in discharge of a debt. Consequently, the revision petitioner was convicted and sentenced to undergo simple imprisonment for three months and a fine of Rs.1000/- and in default to undergo simple imprisonment for 15 days. The revision petitioner preferred an appeal as Crl.A.No.835 of 2001. The appellate court formulated the following points for consideration:- "(1) Whether the appellant issued a cheque in favour of respondent No.1 ? (2) Whether the appellant is guilty of an offence u/s 138 of the N.I. Act? (3) Whether there is an infirmity in the order of conviction passed by the court below ?" The appellate court found that the trial court rightly relied on the decision of this Court reported in 1999(2) KLT 401 (supra) and the presumption available under section 139 of the N.I. Act was very much available in the case and that the revision petitioner herein had failed to rebut the presumption available under section 139 of the N.I. Act. Accordingly, the appellate court confirmed the conviction and the sentence passed against the revision petitioner herein. 4. I have heard the learned counsel on both sides. The learned counsel for the revision petitioner firstly, contended that admission of signature in the cheque in question will not tantamount to admission of execution of Ext.P1 cheque, so as to attract the presumption under section 139 of the N.I. Act. Secondly, it is contended that for a successful prosecution of the offence under section 138 of the N.I. Act it is incumbent on the complainant to allege and prove that there was a legally enforceable debt and it is for the discharge of the said legally enforceable debt that the cheque in question was drawn and executed. 5. With respect to the first question, the position is fairly settled that admission of a signature in a cheque will not amount to admission of execution of that cheque. Evidently, in this case, the execution of the cheque was denied by the revision petitioner herein. It is to prove the said case that he had examined DWs 1 and 2. Therefore, the question is whether once the execution is denied whether the burden would shift to the complainant to prove that the instrument in question was duly executed by its maker. In the light of the decisions of this Court in Bhaskaran Nair v. Mohanan (2009 (2) KLT 897) and Santhi C. v. Mary Sherly and Another (2011 (3) KHC 22) I have no hesitation to hold that admission of signature in a cheque would not amount to admission of execution of the said cheque. In view of the admission of the signature in the cheque would not absolve the complainant from his onus to prove the fact that the cheque in question was drawn and executed by its maker. 6. The next question to be decided is whether for a successful prosecution of offence under section 138 of the N.I. Act the complainant has to prove that there was a legally enforceable debt and it was for discharging the said legally enforceable debt that the cheque in question was drawn and executed by the accused. In this case, as already noticed herein before, the specific contention of the revision petitioner herein is that what was issued by him was only a blank cheque that too, not to the complainant, but to one Shamsudin from whom he borrowed some amount. It was to prove that fact that he got examined DWs1 and 2. The oral testimony of DWs 1 and 2 would reveal that their version lend considerable support to the version of the revision petitioner herein. 7. A scanning of the oral evidence of PW1 is essential in this case. Normally, in the revisional jurisdiction ,this Court would not go into and re-appreciate the evidence. However, for the limited purpose of looking into the verity of the specific contentions taken by the revision petitioner herein that the complainant himself admitted during the cross examination that he had no acquaintance with the revision petitioner and despite the same he had lend Rs.1,05,000/- to the revision petitioner and the cheque in question that too, a blank cheque was issued for discharging the said debt, I am persuaded to look into the oral testimony of PW1. In the complaint as also during the examination of PW1, the complainant would depose that the amount in question was borrowed on 2.2.1998. It is his case that Ext.P1 cheque was issued on 10.2.1998. In the cross examination it was deposed:- " . . Brothers Foot Wear, North Kalamassery ......................... 2-2-98 (Q) (A). (Q) (A)." Thus, it is evident that even according to the complainant/the first respondent herein, he had only nodding acquaintance with the revision petitioner. According to him, he had seen the revision petitioner in the shop of his friend Shamsudin. The oral evidence of DWs 1 and 2 would reveal that they knew Shamsudin who conducts `Brothers Foot Wear' and they used to park their autorickshaws in front of the said shop. They deposed to the effect that they had seen the transaction between the said Shamsudin and the revision petitioner herein. Though in the cross examination DWs 1 and 2 deposed that they are close friends of the revision petitioner, a scanning of their oral evidence would reveal that nothing was elicited to discredit their version. The courts below arrived at the conclusion that the revision petitioner has committed the offence under section 138 of the N.I. Act, essentially, relying on the presumption available under section 139 of the N.I. Act. True that, a presumption is available under section 139 of the N.I. Act and in the light of the decision of this Court reported in 1999 (2) KLT 401 (supra), an adverse inference has to be drawn in favour of the complainant on the failure of the accused to rebut the presumption available under section 139 of the N.I. Act. There cannot be any doubt with respect to the said position, especially, in the light of the decision of this Court reported in 1999 (2) KLT 401 (supra). At the same time, as already noticed herein before, when once the very transaction itself is disputed by the parties and the accused had adduced evidence to that effect, necessarily to have a successful prosecution under section 138 of the N.I. Act the complainant has to prove that there was a legally enforceable debt. In other words, in such circumstances, the burden would shift. Needless to say that, in the absence of any dispute with respect to the transaction in question or in the failure of adducing rebuttal evidence, the presumption under section 139 of the N.I. Act will very much be available in favour of the complainant. In this case, it is the specific case of the revision petitioner that there was no transaction at all between himself and the first respondent. That apart, it is his case that he had borrowed Rs.15,000/- from one Shamsudin who was also a friend of the complainant and it is for discharging the said liability towards the said Shamsudin that he had issued the cheque in question. It is to prove that he had issued cheque to Shamsudin and had a transaction with Shamsudin, DWs 1 and 2 were examined. Therefore, to that limited extent, in the absence of anything brought out to discredit the version of DWs 1 and 2, their evidence can be relied on. In other words, there was no reason to hold that their oral testimony was wholly untrustworthy. In short, I am of the view that when the very transaction itself is disputed and some evidence to that effect was adduced by the accused, a conviction merely based on the presumption available under section 139 of the N.I. Act cannot be sustained. The complainant has to be saddled with the liability to prove that there was a legally enforceable debt between the complainant and the accused and it is for discharging the said debt that the cheque in question was drawn and executed. I am fortified in my view by the judgment of this Court in Santhi.C. v. Mary Sherly and Another (Supra). The learned counsel for the first respondent /complainant could not bring to my notice any material on record to show that the said onus has been successfully discharged by the complainant. It is also to be noted that, in this case, though the revision petitioner had admitted the signature in Ext.P1, he had not admitted the execution of the same that is, he had not admitted that the said cheque was drawn and executed in favour of the complainant. When the accused had adduced evidence capable of casting doubt with respect to the case of the complainant the complainant cannot solely rely on the presumption available under Section 139 of the N.I. Act whilst he has to adduce evidence to prove existence of a legally enforceable debt and also the fact that the cheque in question was drawn and executed for discharging the said debt owing to him. The oral testimony of PW1, would reveal that he had only a nodding acquaintance with the revision petitioner that too, occasional meeting in the shop of the aforesaid Shamsudeen. Still, it is his contention, such a huge amount was lend on 2.2.1998 and the cheque was obtained only on 10.2.1998. In such circumstances, the evidence adduced by the revision petitioner certainly was sufficient to call upon the complainant to discharge his burden proving the execution of the cheque and also existence of a legally enforceable debt. The complainant had failed to discharge the said burden. In view of the circumstances, the conviction of the revision petitioner by the trial court which was confirmed by the appellate court mainly relying on the presumption available under section 139 of the N.I. Act, on account of the failure on the part of the complainant to prove that there was a legally enforceable debt between himself and the revision petitioner, cannot be sustained. Resultantly, the conviction and sentence imposed on the revision petitioner in C.C.No.542 of 1998 by the Judicial First Class Magistrate-II, Aluva which was confirmed by the Sessions Court, North Paravur in Crl.A.No.835 2001 are set aside. The petitioner is acquitted. Consequently, the bail bond is cancelled. Sd/- C.T.RAVIKUMAR Judge TKS |