Burden of proof – when the complainant not able to say the date when the amount was given

                       CRIMINAL APPEAL NO.2043 OF 2013
                       (@ SLP (CRL.) No.9505 of 2011)
John K. Abraham                               …. Appellant
Simon C. Abraham & Another                   …. Respondents
                               J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
   1. Leave granted.
   2. This appeal is directed against the judgment  of  the  High  Court  of
      Kerala at Ernakulam dated  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
   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  the
      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
   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
  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
  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.
                                    [Surinder Singh Nijjar]
                                  [Fakkir Mohamed Ibrahim Kalifulla]
 New Delhi;
 December 05, 2013.

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