P. Radha Nair vs The State of Kerala and P. Abdullakutty

N.K. Balakrishnan, J.—Complainant is the appellant. She filed a complaint stating that the accused/respondent had borrowed from her Rs. 5 lakhs promising to repay the same within six months. According to her the amount was borrowed for his business purpose. Since the amount was not repaid, when demanded Ext.P1 cheque was issued, which on presentment was bounced due to insufficiency of funds. On receipt of the dishonour memo statutory notice was sent to which no reply was sent. The amount was also not paid. Hence the complaint was filed.

The complainant got herself examined as PW1 and Exts.P1 to P5 were marked. The Bank Manager was examined as DW1 to prove the ledger extract of the account maintained by PW1. Exts.D1 and D2 were also marked.

The learned Magistrate found much difficulty to believe the version of PW1, the complainant that she had advanced a huge amount of Rs. 5 lakhs to the accused without getting any document executed in her favour. The case of the accused is that he was a rice merchant and he used to supply rice to ration shops. The Service Co-operative Bank of which the complainant was the Secretary was running ration shops. For the rice to be supplied, some amount was advanced to the accused and at that time the accused had handed over to the Service Co-operative Bank his two signed blank cheque leaves and one of the signed blank cheque leaves was misused by the complainant who was the Secretary of that bank and filed this complaint. The accused did not mount the witness box to give evidence but, considering the totality of the evidence and circumstances, the learned Magistrate was not inclined to accept the case of the complainant and thus the accused was acquitted under Sec. 255(1) Cr.P.C.

Learned counsel for the complainant submits that since Ext.P1 cheque dated 1.3.2004 was signed and issued by the accused, the presumption under Secs. 118 and 139 of the N.I. Act is available to the complainant and that presumption was not duly rebutted by the accused and hence court below should have accepted the case of the complainant. It is further contended that the theory advanced by the accused that he had handed over two signed blank cheque leaves to the Co-operative Bank for the advance given by the Cooperative Bank for supplying the rice should not have been accepted by the learned Magistrate since it is highly unbelievable that Co-operative Bank would collect such signed blank cheques either as advance or for any other purpose.

Learned counsel for the accused would submit that the burden is on the complainant to prove the transaction and the alleged lending of money. According to the complainant, the amount lent by her to the accused was the amount she had obtained as retirement benefits and also some amount obtained from her brother who was employed in gulf. Learned counsel for the accused would submit that it is unbelievable that the complainant would part with her entire savings, namely; the retirement benefits and other amount obtained from her brother only to see that the said amount is given to the accused for conducting business. The accused is not her relative. That also is one of the reasons to say that the case of the complainant is untrue, the accused contends.

It is seen that apart from the oral testimony of PW1, there is no other evidence to show that the amount was lent by her to the accused. Though it was stated that her brother had also contributed some amount to enable her to lend money to the accused, that fact also is not seen proved by producing bank account of herself or of her husband. Ext.D1 would show that on 30.8.2003 the amount standing to her credit was only Rs. 5,442/-. Ext.D2 the account particulars produced from Pattikkad Service Co-operative Bank Ltd. does not show the account particulars of August 2003 or for the period immediately prior to that. Another sheet is also seen appended to Ext.D2 which also does not show that the complainant was having sufficient amount standing to her credit. Convincing evidence has not been adduced to prove the same. But actually no document was produced to show what was the amount she had obtained as retirement benefits or what was the amount given to her by her brother who was working abroad.

The contention advanced by the accused that he had only handed over the signed blank cheque leaves to the Co-operative Bank also does not infuse confidence since the Co-operative Bank will not receive signed blank cheque leaves when it was pertaining to supply of rice. The contention that was raised by the accused was that the Co-operative bank had advanced some amount to the accused for the purpose of supplying rice to various ration shops run by the Co-operative Bank. If so, there would be records with the Co-operative Bank showing such payment of advance amount. The Secretary or the President cannot pay any amount otherwise than through the account of the bank. If signed blank cheque leaves were received by the Co-operative Bank then there would be record with the bank. Therefore, there is no acceptable evidence on that point also. In the light of the evidences and circumstances, I find that both parties have to be given opportunity to adduce further evidence in the matter.

In the result, this Crl. A. is allowed in part. The verdict of acquittal is set aside and the case is remanded to the trial court for fresh disposal in accordance with law. The parties are directed to appear before the trial court on 1.3.2012. Both parties are given opportunity to adduce further evidence in that matter.