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Judgment
N.K. Balakrishnan, J.—The complainant is in appeal. The complaint was filed u/s 138 of the N.I. Act. The accused therein was acquitted u/s 255(1) Cr.P.C. Ext.P1 cheque dated 6.10.2000 was stated to have been issued by the accused to discharge a sum of Rs. 80,000/- which the accused was stated to have borrowed from the complainant in July, 2000. When Ext.P1 was presented for encashment it was dishonoured due to insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent to which no reply was sent by the accused. As the amount was not paid, the complaint was filed.
The complainant got himself examined as P.W.1 and Exts.P1 to P5 were marked. The Secretary of the Thalayazham Panchayat Merchants Welfare Society was examined as D.W.1. The brother of the accused was examined as D.W.2. Exts.D1 and D2 notices were also marked.
The contention raised by the first respondent/accused is that he was a subscriber to a chitty conducted by the Thalayazham Panchayat Merchants Welfare Society (hereinafter referred to as ''the Society''). That chitty was bid by him. He was liable to pay future instalments of that kuri/chitty amount. He failed to remit certain instalments and hence he was issued with a notice from the Society. At the time when the chitty was bid by him, his signed blank cheque leaves were obtained by the complainant who was the then Secretary of the Society and misusing one of the cheque leaves, this complaint was filed. This is the defence set up by the accused.
The learned Magistrate found that there is nothing to show that the transaction involved in the case on hand has anything to do with the kuri transaction. But at the same time it was found that the complainant who was the Secretary of the Society was aware of the fact that the accused was a defaulter to the Society and as such it was highly improbable that the complainant would have lent Rs. 80,000/-. It was also contended that the complainant himself was an accused in a case filed u/s 138 of the N.I. Act and that case happened to be filed against him since the cheque issued by him to the complainant in that case was bounced due to insufficiency of funds. Therefore, it was argued that it was highly improbable that such a person who could not discharge debt of Rs. 8000/- could advance a sum of Rs. 80,000/- to the respondent. It was further contended by the accused that apart from the evidence given by the complainant as P.W.1, there is no other evidence to show that Ext.P1 was duly executed by the accused or to prove that a sum of Rs. 80,000/-was given by the complainant to the accused. Thus the learned Magistrate was not inclined to accept the case of the complainant and hence the accused was acquitted.
The learned counsel for the appellant/complainant submits that the contentions with regard to the chitty conducted by the Society or as to the liability of the accused to pay the instalments towards the chitty conducted by the Society had nothing to do with the transaction mentioned in this case. Simply because the complainant happened to be the Secretary of the Society for a particular duration, it cannot be found that Ext.P1 was a cheque leaf given by the accused to that Society. The evidence given by D.W.1 would show that a trust was registered in July, 2003. At another place it was stated that it was in 2004 the trust was formed. Whatever that be, the formation of the trust was about three years after the filing of the complaint. The case itself was filed before the learned Magistrate in the year 2001. The contention that has been advanced by the accused is that his signed blank cheque leaf given by him when he bid the chitty was misused by the complainant. It is argued by the learned counsel for the complainant that no notice was sent by the accused to the Society or to the complainant for return of the cheques alleged to have been given by him to the Society. There is also no material to show that the Society had sent any notice to the complainant alleging that the complainant had taken away signed cheque leaves entrusted to the Society by the subscribers to the chitty nor did the Society lodge any complaint to the police or before any authorities. It is also argued that since the trust was formed only after about three years, if in fact any signed cheque leaf given by the accused happened to be with the Society, then in all probability, the accused would have taken action for getting return of the cheque leaf. That was not done. The Society also took no action against the complainant. D.W.1 says that some of the documents which were with the Society were lost or damaged or destroyed in fire. Except the interested version of D.W.1, there is nothing to probablise that version. If the appellant had misused or misappropriated any cheque leaf given by any of the subscribers to the chitty or by any other person, then members of the Society who later formed the trust or became members of the trust would have taken action against the complainant. That also was not done. The court below also found that the cheque in question has nothing to do with the Society or the transaction set up by the accused. It is also seen that when P.W.1 was in the witness box, so many questions were put to him in cross examination with regard to the contents of certain documents which were not actually produced in court. All those questions should have been disallowed. Therefore, that part of the evidence which is impermissible to be let in cannot be admitted in evidence. Similarly, when P.W.1 was in the witness box, he was also asked about so many documents which were not produced in court. Therefore, those aspects also cannot be used to decide the issue.
The crucial question is whether there is legal evidence to prove the execution of Ext.P1 cheque. According to the complainant, if the case set up by the accused that Ext.P1 was created by making use of a signed cheque leaf given by the accused to the Society is disbelieved, then there would be no difficulty to accept the oral testimony given by P.W.1 that Ext.P1 was executed by the accused to discharge a debt of Rs. 80,000/-borrowed by the accused from the complainant.
The learned counsel for the accused would submit that the transaction was in the year 2000. No document was produced by the complainant to show that he was having that much amount with him so as to lend it to the accused. In this connection, it is also pointed out that the learned Magistrate has observed that the complainant himself was an accused in a case filed u/s 138 of the N.I. Act where the allegation was that the cheque issued by him was dishonoured due to insufficiency of funds. If in his account there was no money to the tune of Rs. 8000/- to honour the cheque mentioned in that case, it cannot be believed that the complainant was having that much money to lend to the accused. But the learned counsel for the accused would submit that evidence given by P.W.1 is to the effect that amount was available with him in cash and it was not a case where the amount was drawn from his bank account. The evidence given by P.W.1 as to the source of income or as to his capacity to give that much amount to the accused was not effectively challenged by the accused in cross-examination and so the court below should have drawn the presumption u/s 139 of the N.I. Act against the accused and since the accused could not rebut that presumption, the conviction should necessarily follow, the complainant contends. It seems, the accused did not offer any explanation why or how he happened to sign and issue a blank cheque leaf. It was possible for him to show the ''Society'' as the payee if in fact the amount was then due to the Society.
Considering all the aspects I find that both sides should be given opportunity to adduce further evidence in the matter. The order of acquittal passed by the learned Magistrate is to be set aside.
In the result, this appeal is allowed in part. The order of acquittal passed by the learned Magistrate is set aside. The case is remanded to the court below for fresh disposal. Both sides will appear before the learned Magistrate on 15th February, 2012.
Both parties are given opportunity to adduce further evidence, if any, in the matter. The learned Magistrate will dispose of the case as expeditiously as possible since this is a very old matter. The possibility of settlement can also be explored before the court below.