SUPREME COURT OF INDIA

John K. Abraham

Vs.

Simon C. Abraham & Another

Crl.A.No.2043 of 2013

(Surinder Singh Nijjar and Fakkir M.I.Kalifulla, JJ.)

05.12.2013

JUDGMENT

Fakkir M.I.Kalifulla, J.

1. Leave granted.

2. This appeal is directed against the judgment  of  the  High  Court of  Kerala at Ernakulamdated  15th  December,  2010  passed  in  Criminal Appeal No.452 of 2004.

3. The issue involved in this appeal arises under Section 138 of the Negotiable Instruments Act. The complaint  was  preferred  by  the respondent No.1 before the Chief Judicial  Magistrate,  Pathanamthitta alleging that appellant borrowed a sum of Rs.1,50,000/- from  him  and issued a cheque for  the  said  sum  on  20.06.2001  drawn  on  Indian  Overseas Bank, Plankamon branch in discharge of the debt.  It  is  the further case of the respondent--complainant that when the  cheque  was presented for encashment through Pathanamthitta District  Co-operative Bank, Kozhencherry branch, the same was returned by the  bankers  with the endorsement ‘insufficient funds in the account  of  the  accused’. The respondent-complainant stated to have issued a lawyer’s notice on 14.07.2001, which was received by the appellant on 16.07.2001, but yet there was no reply from the appellant. Based on the above averments alleged in the complaint, the case was tried by the learned Chief Judicial Magistrate.

4. The respondent herein was examined as PW.1 and Exhibits   P-1 to P-6 were marked. None was examined on the side of the appellant.  In  the questioning of the appellant made under Section 313  of  Cr.P.C.,  the appellant took the stand that his son took the  cheque  from  him  and that if at all anything was to be recovered, it had to  be  made  from the son of the appellant, since the appellant  had  not  borrowed any money.

5. The learned Chief Judicial Magistrate after considering the oral  and documentary evidence led on behalf of the respondent-complainant, held that the respondent-complainant was making a  prevaricating  statement  as regards the issuance of the cheque, that he was not even  aware  of the date when the amount  was  said  to  have  been  borrowed  by  th appellant, that there was material alteration in the  instrument  and, therefore, the respondent failed to establish a case under Section 138 of the Negotiable Instruments Act.  Consequently, the learned Chief Judicial Magistrate found the appellant not guilty and acquitted him under Section 255(1) of Cr.P.C. The respondent preferred the appeal in the High Court of Kerala at Ernakulam and by the  impugned  order  the High Court  reversed  the  judgment  of  the  learned  Chief  Judicial Magistrate, convicted the appellant and imposed the sentence to pay  a fine of Rs.1,50,000/- as compensation under Section 357(1) of  Cr.P.C. In default of making the payment of the fine amount, the appellant was directed to suffer simple imprisonment for a period of three months.

6. We heard Mr. Romy Chacko, learned counsel for the appellant and Mr. Jogy Scaria, learned counsel for the 2nd respondent. We also perused the material papers placed before us, including the judgment of the trial Court as well as the High Court. Having considered the above, we are of the view that the High Court was in error in having reversed the judgment of the trial Court.

7. When we examine the case of the respondent-complainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial Court, we find that the trial Court had noted certain vital defects in the case of the respondent-complainant.  Such defects noted by the learned Chief Judicial Magistrate were as under:

a) Though the  respondent  as  PW-1  deposed  that  the  accused received the money at his house also stated that he  did  not remember the date when the said sum of Rs.1,50,000/- was paid to him.

b) As regards the source for advancing the sum of Rs.1,50,000/-, the respondent claimed that the same was from and out of  the sale consideration of his share in the family property, apart from a sum of Rs.50,000/-, which he availed by  way  of  loan from the co-operative society of the  college  where  he  was employed. Though the respondent stated before the Court below that he would be in a position to produce the documents in support of the said stand, it was noted that no documents were placed before the Court below.

c) In the course of  cross-examination,  the  respondent  stated  that the cheque was signed on the date when the  payment  was made, nevertheless he stated that he was  not  aware  of  the date when he paid the sum of Rs.1,50,000/-.

d)  According  to  the  respondent,  the  cheque  was   in   the handwriting of the accused himself and the very  next  moment he made a contradictory statement that the cheque was not  in the handwriting of the appellant and  that  he  (complainant) wrote the same.

e) The respondent also stated that  the  amount  in  words  was written by him.

f) The trial Court has also noted that it was not  the  case  of the respondent that the writing in the cheque and filling  up of  the  figures  were  with  the  consent  of  the   accused appellant.

8. In light of the  above  evidence,  which  was  lacking  in  very  many material particulars, apart from the contradictions therein, the trial Court held that the appellant was not guilty of the  offence  alleged against under Section  138  of  the  Negotiable  Instruments  Act  and

acquitted him.

9. Keeping the above factors  in  mind,  when  we  examine  the  judgment impugned in this appeal, we find  that  the  High  Court  committed  a serious illegality in reversing the judgment of learned Chief Judicial Magistrate. While reversing the judgment  of  the  trial  Court, what weighed with the learned Judge of the High Court was that in  the  313 questioning, it was not the case of the appellant that a blank  signed cheque was handed over  to  his  son  and  that  even  in  the  cross- examination it was not suggested to  PW-1  that  a  blank  cheque  was issued. The High Court  was  also  persuaded  by  the  fact  that  the appellant failed to send any reply to the lawyer’s notice,  issued  by the respondent. Based on the above conclusions, the High Court held that the presumption under Sections 118  and  139  of  the  Negotiable Instruments Act could be easily drawn and that the appellant failed to rebut the said presumption. On that single factor, the  learned  Judge of the High Court  reversed  the  judgment  of  the  trial  Judge  and convicted the appellant. It has to be stated that in order to draw the presumption under Section 118 read along with 139  of  the  Negotiable Instruments Act, the burden was heavily upon the complainant  to  have shown that he had required funds for having advanced the money to  the accused; that the issuance of  the  cheque  in  support  of  the  said payment advanced was true and that the accused was bound to  make  the payment as had been agreed while issuing the cheque in favour  of  the

complainant.

10. Keeping the said statutory requirements in mind, when we  examine  the facts as admitted by the respondent-complainant, as rightly  concluded by the learned trial Judge, the respondent was not even aware  of  the date when substantial amount of Rs.1,50,000/- was advanced by  him  to the appellant, that he was not sure as to who wrote the  cheque,  that he was not even aware when exactly and where exactly  the  transaction took place for which the cheque came to be issued  by  the  appellant. Apart from the said serious lacuna in the evidence of the complainant, he further admitted as PW.1 by stating once in the course of the cross-examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. We find that the various defects in the evidence of respondent, as noted by the trial Court, which we have set out in paragraph 7 of the judgment, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under Section 138, having been noted by the learned trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial Court, in our considered opinion would vitiate the ultimate conclusion reached by it. In effect, the conclusion of the learned Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained.

11. Having regard to our above conclusion, this appeal stands allowed. The order impugned is set-aside, the conviction and sentence imposed on the appellant is also set aside.