Commissioner of Income Tax-II vs. Sri K.V.Ramprasad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 CRL.A.No. 430 of 2006 AGAINST THE ORDER OF ACQUITTAL IN C.C.NO.515/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA APPELLANT/ COMPLAINANT : SIVADASAN, S/O. EDAVANAPARAMBIL KUTTAPPAN, THEKKUMKARA, KONATHUKUNNU, MUKUNDAPURAM TALUK, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/ ACCUSED AND STATE OF KERALA : 1 K.P.VARGHESE, S/O. KAITHARATH PAILY, AJAY BHAVAN, VELANGALLUR, VADAKKUMKARA VILLAGE,, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.RENJITH THAMPAN (SR.) SMT.ANITHA RAVINDRAN R2 BY PUBLIC PROSECUTOR SRI.K.B.RAMANAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :

CRL.A.No. 430 of 2006 2 JUDGMENT The appellant was the complainant in CC.No.515/2002 on the file of the Judicial First Class Magistrate Court, Irinjalakkuda. The complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act against the accused. On wrong appreciation of evidence, the learned magistrate came to a conclusion that Ext.P1 cheque was not issued by the first respondent in order to discharge the enforceable debt and liability. The definite case of the complainant is that the first respondent borrowed Rs.50,000/- from the complainant on promising to pay the same and for which a cheque was issued for the said amount bearing No.729223 drawn on the Canara Bank, Chalakkudy branch dated 05.02.2001. The cheque was presented for encashment in State Bank of Travancore, Kodungallur Branch, but it was

CRL.A.No. 430 of 2006 3 dishonoured for want of sufficient fund in the account of the first respondent (accused). Thereafter, a lawyer notice was issued by the appellant which was received by the first respondent. But, no payment was made to discharge the liability. Hence the complaint was filed. 2. On the side of the complainant, he himself was examined as PW1 and Exts.P1 to P6 were marked. The accused has defended the complaint and stated that the complainant had launched a complaint before the Electricity Department and in pursuance to that complaint, he was suspended from the service on 05.02.2000. Though he did not commit any illegality, but in order to cancel his suspension, he had issued a blank cheque demanded by the appellant herein to pay the additional bill amount of Rs.38,000/- by the Kerala State Electricity Board. Thereafter the accused himself has examined as DW1 and marked documentary evidence Exts.D1 to D5.

CRL.A.No. 430 of 2006 4 3. After evaluating the entire evidence, the court below has held that the accused is not guilty. Hence, he was acquitted on the charges levelled against him. The grounds for the appeal is that the court below went wrong in coming to a conclusion that the quantum of evidence required to rebut the presumption is not rigid. The court below ought to have found that since Ext.P1 cheque and its issuance is practically admitted by the accused, the entire burden to dispel the presumption lies on the accused. The court below wrongly appreciated the evidence and came to the conclusion that Ext.P1 cheque was not issued by the accused to discharge an enforceable debt or liability. In fact, the date of issuance of the cheque is not in dispute. But the reasoning of the court below that the accused has succeeded in rebutting the presumption under Section 139 of the Negotiable

CRL.A.No. 430 of 2006 5 Instruments Act is illegal. Therefore, the appellant prays for setting aside the judgment of the court below. 4. Now the question to be considered is whether the judgment of the lower court by acquitting the accused is justifiable or not. The definite case of the complainant is that the accused has borrowed Rs.50,000/- from him for which he has issued a cheque bearing No.729223 drawn on Canara Bank, Chalakkudy Branch dated 05.02.2001. The said cheque was presented for encashment in the State Bank of Travancore, Kodungalloor Branch. But, it was dishonoured for want of sufficient fund in the account of the accused to honour the cheque. This fact was informed by the concerned bank by issuing a dishonour memo dated 24.02.2001. Thereafter, a registered lawyer notice was issued on 02.03.2001. But he was reluctant to pay the amount even after receipt of the

CRL.A.No. 430 of 2006 6 notice. The complainant himself was examined as PW1 and filed a proof affidavit in lieu of chief examination and on his side Exts.P1 to P6 were marked. The accused was also examined as DW1 and marked Exts.D1 to D5. PW1 has assertively stated that the accused has borrowed an amount of Rs.50,000/- from him on 05.08.2000. When he demanded the said amount, the accused has issued Ext.P1 cheque dated 05.02.2001. So the definite case of the accused is that he has not received Rs.50,000/- from the complainant. In fact, Ext.P1 chque was issued in blank without consideration in order to withdraw the complaint launched by the complainant against him before the KSEB. So, according to the accused, Ext.P1 cheque was not supported by consideration. 5. It is admitted by the accused that he has handed over Ext.P1 blank cheque with his signature. When the issuance of the cheque is admitted by the

CRL.A.No. 430 of 2006 7 accused, the presumption is available in favour of the respondent under Section 118 and 138 of the Negotiable Instruments Act. Then the burden is on the accused to rebut the presumption stands in favour of the complainant. So the accused has to prove to rebut the presumption by preponderance of probabilities. 6. It was brought out by the learned counsel for the accused that date of issuance of the cheque is absent in Ext.P1 notice as well as in the complaint. But the definite case of PW1 while he was in box that the accused has borrowed the amount on 05.08.2000. But the date of issuance of the cheque is not stated either in the complaint or in the chief examination or during cross examination. It is very important to note that the date of issuance of the cheque as borne out from Ext.P1 cheque is 05.02.2001. The accused has taken a defence case that he has given Ext.P1 blank cheque on 05.02.2001 in order to withdraw the

CRL.A.No. 430 of 2006 8 complaint launched by the complainant against him. It is very important to note that while cross examination of PW1, he has expressed ignorance regarding the date of issuance of the cheque. PW1 did not adduce any evidence to prove that Ext.P1 cheque was issued on the date different from the date as shown in Ext.P1. He has not raised any case that he has issued post dated cheque. It is an admitted fact that the accused is a junior engineer in the KSEB, Vellangallur section. There was an evidence to the effect that the complainant launched a complaint against the accused before the KSEB authorities alleging misconduct on the part of the accused. Ext.D1 is the certified copy of the complaint which was marked through PW1 during his cross examination. Ext.D1 is dated 20.12.2000. What is narrated in Ext.D1 complaint is that the complainant had filed an application before the KSEB, Vellangallur Section on 09.10.2000 for sanction to use his existing

CRL.A.No. 430 of 2006 9 connection for the purpose of construction of his residential house. The license fee of Rs.607/- was entrusted to the accused through an electrician by name Vinod. Thereafter, the Electricity Board conducted an inspection in the newly constructed building on 07.02.2000 and detected the use of an additional load and imposed an additional amount of Rs.35,694/-, as penalty for the use of electrical energy unauthorisedly. The definite case of the complainant is that though the accused had accepted the amount, he has not cared to remit the same to the KSEB for providing license to the complainant. The accused has admitted that the complainant has launched a complaint against him. But according to him, it was a false complaint. Any way, on the basis of that complaint, accused was suspended from service and he was suspended prior to 17 months from his date of retirement. The Deputy Engineer has informed the

CRL.A.No. 430 of 2006 10 accused that if the complaint was withdrawn, his suspension could be cancelled. Accordingly, the accused approached the complainant. But he demanded issuance of a cheque in blank to pay the additional bill imposed by the KSEB. Accordingly, a blank cheque was issued to the complainant on 05.02.2001. Thereafter, he along with the complainant approached the Deputy Chief Engineer and the complainant had withdrawn the complaint launched by him. Thereafter, he was reinstated in the service after the dismissal of departmental enquiry initiated against him. PW1 has admitted that he has withdrawn the complaint filed against the accused and also admitted that after the withdrawal of the complaint, the accused was reinstated in the service. The definite case of the accused is that the complaint was withdrawn on 05.02.2001 on the date of issuance of Ext.P1 cheque. But, cleverly PW1 has expressed his ignorance

CRL.A.No. 430 of 2006 11 regarding the date of withdrawal of the complaint. In order to contradict this fact, accused has produced Ext.D5 reply notice issued by the Secretary, KSEB, Trivandrum to the accused dated 29.04.2003 in reply to the registered notice issued by the accused on 18.01.2003. 7. I have gone through Ext.D5 reply which would prove that the complainant had given a statement in the domestic enquiry before the KSEB on 05.02.2001 withdrawing his complaint. So it is clearly established from the available record that it was on 05.02.2001, the complainant had withdrawn the complaint. So, the case advanced by the accused that on demand of the complainant, a blank signed cheque was handed over to him on 05.02.2001 for the purpose of withdrawing the complaint filed against him. Admittedly and as evidenced from Ext.D5, the complaint was withdrawn on 05.02.2001. It is the case

CRL.A.No. 430 of 2006 12 of PW1 that the KSEB has imposed an amount of Rs.37,000/- as penalty on account of consumption of additional load by him for the construction of his newly residential building. The complaint of the complainant was that the penalty was imposed on him on account of non-payment of Rs.607/- by the complainant before the KSEB, for getting permission for additional load. If that be so, according to PW1, at the time of withdrawal of complaint by him the liability of the accused was Rs.50,000/- as loan provided by him and Rs.37,000/-, as the penalty imposed by the KSEB. According to PW1, the accused is liable to pay Rs.87,000/-. So, under these circumstances, it is impossible to believe the versions of PW1 that he had accepted only a blank signed cheque from the accused for the purpose of withdrawing the complaint. PW1 has failed to establish that the accused is liable to pay Rs.87,000/- as stated by PW1. The complainant during cross examination

CRL.A.No. 430 of 2006 13 has admitted that the construction of his house was started in the year 1998 and completed in the year 2002. It was also deposed by PW1 that he borrowed the amount from his brother and one Abdul Rahman for the purpose of giving Rs.50,000/- to the accused. In the meanwhile, he has also adduced evidence to the effect that he is having an annual income of Rs.12,00,000/- and he is an income tax assessee. The accused has totally denied the entire transaction. But the complainant has not cared to examine his brother or the so called Abdul Rahman in order to prove the passing of consideration. 8. So, from the evidence adduced by both sides, I have no hesitation to come to a conclusion that the complainant has failed to succeed in establishing that the accused has borrowed Rs.50,000/- from him and moreover, his case is that the KSEB has imposed additional penalty of Rs.35,694/-. It has also borne

CRL.A.No. 430 of 2006 14 out that the complainant has filed a complaint against the accused, but it was withdrawn on 05.02.2001 and on that day, Ext.P1 cheque was seen to have issued to the complainant. So the circumstances will reveal that the case advanced by the accused is more probable than the case advanced by the complainant. The complainant has failed to succeed in proving that Ext.P1 cheque was issued for a legally dischargeable debt. It has also come out in evidence that since Ext.P1 cheque was issued to withdraw the complaint, the consideration shown in the instrument is not a lawful consideration and hence for want of consideration, it creates no obligation of payment of any amount by the accused. In fact, the complainant has not succeeded in proving the case advanced against the accused and that Ext.P1 cheque was issued for a legally dischargeable debt. This fact has been elaborately considered by the court below and

CRL.A.No. 430 of 2006 15 ultimately acquitted the accused. I do not find any ground to interfere with the finding entered by the court below. Accordingly, this Crl.Appeal is dismissed. Sd/- ANNIE JOHN, JUDGE RKM