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Judgment
A. Hariprasad, J.—Appeal filed u/s 378 of the Code of Criminal Procedure Code (for short, "Cr.P.C."). Appellant was aggrieved by the dismissal of his complaint filed u/s 138 of the Negotiable Instruments Act (for short, "Act") and the consequential acquittal of the 1st respondent/accused. Pending the appeal, the appellant/complainant died. His legal heirs were impleaded as additional appellants. Case in the complaint, in short, is that the accused issued a cheque drawn on his banker for Rs. 70,000/- to discharge a legally enforceable debt towards the complainant. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account of the accused. Lawyer notice was issued as per proviso (b) to Section 138 of the Act. In spite of receipt of notice, the accused did not even sent a reply. Thereafter, the prosecution was launched. At the trial, two witnesses were examined on the side of the complainant. Exts. P1 to P6 marked.
Heard the learned counsel for the appellant and the learned counsel for the accused/respondent. Learned Public Prosecutor is also heard.
Learned Magistrate after analysing the evidence found that the complaint and the affidavit filed in lieu of chief examination are bereft of details regarding the alleged advancement of amount. Further, it was found that the case set up by the complainant is highly improbable. Court below noticed that going by the facts asserted by P.Ws. 1 and 2, it was highly improbable to think that there would have been advancement of amount as claimed by the complainant and issuance Ext. P1 cheque in discharge of that liability.
P.W. 1 is the complainant. He testified that he was a trade union worker. He was functioning as the Secretary of the Kerala Artisans Union. Further, he was a State Committee Member in Artisans Federation of India. Even though he initially stated that Artisans Federation of India is an apolitical organisation, later, in cross-examination, it has come out in evidence that there was a split in the organisation on account of political differences in opinion. Admittedly, the complainant and the accused belonged to two fractions in the organisation. In the complaint, as mentioned by the trial Judge, no definite case as to when money was borrowed, from where it was borrowed, etc. are completely absent. Even in the affidavit filed in lieu of chief examination, no details regarding the lending was mentioned. P.W. 1 at the time of evidence contended that money was advanced to the accused from the Kottayam Office of the Kerala Artisans Union. P.W. 1 in cross-examination, stated that the accused and himself were friends for long years. However, he was not aware as to whether the accused was in financial difficulties. It is interesting to note that P.W. 1 answered in cross-examination that he is a neighbour of the accused. Learned counsel for the accused contended that this case was developed by the complainant without any foundation in the complaint. He would also contend that had the accused and the complainant were friends and neighbours, there was no occasion for the accused to borrow money from the office of the organisation, where they were not sailing together in the same boat. Accused developed a case in cross-examination that while he was working as District President of Artisans Federation of India, he had kept some signed blank cheques in the drawer and it was misused by the complainant. However, there is no definite evidence to accept the case of the accused. But, learned counsel for the accused pointed out the difference in the writings in Ext. P1 cheque and the signature of the accused. Apparent tenor of the cheque will show that it was filled up with one handwriting and the signature of the accused is different from other writings. On this basis, learned counsel for the accused would contend that the accused did not properly execute the cheque. The legal aspect we shall consider in the succeeding paragraphs.
The complainant examined P.W. 2 to strengthen his case. She was a co-worker in the organisation. She stated that she was a witness for the advancement of amount by the complainant to the accused. After 3-4 months, the accused came to the office of the organisation and issued Ext. P1 cheque. It is interesting to note that none of these aspects have been pleaded in the complaint. In cross-examination, P.W. 2 admitted that the accused and the complainant, though worked in one organisation, were followers of different political ideologies. Evidence of P.W. 2 is that the money transaction was during the working hours and she alone was present at the time of transaction. Court below found that without any document, nobody would have advanced Rs. 70,000/- in the normal human conduct. Further, the difference in handwriting seen on the cheque was also commented upon by the court below.
Learned counsel for the accused contended that the court below has taken a correct view on the basis of the evidence adduced in the case. Large volume of case law has been cited by the learned counsel for the appellant to canvass various legal positions. It is settled law that the appellate court shall consider whether the view taken by the trial court on appraisal of evidence is a possible or probable view. If the trial court''s view is also legally sustainable and probable on the basis of evidence adduced in the case, the appellate court cannot substitute its view. Learned counsel for the accused placed reliance on Kamalammal Vs. Mohanan, to contend that the complainant should establish his case by pleading in the complaint and by adducing evidence to support the pleading. It is also argued by the learned counsel for the accused that a case cannot be built up on presumption. In the above mentioned decision, learned Single Judge of this Court held that there cannot be a presumption u/s 139 of the Act that the cheque in question was issued by the accused. The distinction between ''issuing a cheque'' and ''executing a cheque'' was considered elaborately in that decision. Drawing support from M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, it was contended that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. The learned Single Judge of this Court in V.K. Gemini Vs. Chandran and Another, held as follows: Even on a plain reading of section 139 of the Act, it cannot be said that the mere execution/drawing of the cheque (by admission or otherwise) will automatically lead to the presumption that the cheque is drawn for the discharge of a debt or other liability. On the other hand, it is clear from section 139 that to draw the presumption under the said section, certain basic factors referred to in the section are to be established.
Finally, the learned counsel for the accused relied on a decision of the Apex Court in John K. Abraham Vs. Simon C. Abraham and Another, The principle of law stated therein is as follows:
.............. It has to be stated that in order to draw the presumption u/s 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.
Learned counsel for the complainant places reliance on the decision in Dr. Jyothi Prasad Bhat Vs. K. Sundara Rajan and Another, to raise a contention that when the evidence of the complainant is found to be credible and trustworthy, it is sufficient to conclude that the cheque was duly executed. Here, in this case, the question is not only about doubtful execution, but also doubtful advancement of amount and issuance of Ext. P1 cheque in discharge of that liability. Court below appreciated the evidence and found out the inherent improbabilities in the case of the complainant. I do not find any reason to hold that the view taken by the court below is an impossibility or perversity. Therefore, by applying the rule that the appellate court will be loath in interfering in such matters, I find that the appeal is devoid of merit. In the result, the appeal is dismissed.