MAMUNI VIJAYAN Vs. T. KANNAN MASTER

JUDGEMENT

(1.) THE accused in S.T. Case No. 2025/2008 before the Judicial Magistrate of the First Class II, Hosdurg, is the petitioner in this Crl. R.P. He was prosecuted for an offence under Section 138 of the Negotiable Instruments Act. The Magistrate convicted the petitioner and sentenced him to undergo imprisonment till rising of the court and directed him to pay Rs. 2 lakhs to the complainant as compensation under Section 357(3) of Cr. P.C. with a default sentence of simple imprisonment for three months. Crl. Appeal No. 271/2009 before the Court of Session, Kasaragod was dismissed by the Sessions Court. The petitioner is challenging the judgments of the courts below. The contention of the petitioner is that the complainant was not able to prove with any satisfactory evidence that the cheque in question was issued by the petitioner in discharge of a legally enforceable debt or liability. The petitioner points out that the complainant's case is that the complainant borrowed Rs. 2 lakhs on 31.8.2007 for the education of his son. But in cross -examination, he specifically admitted that on 31.8.2007 itself the complainant had executed a sale deed in respect of 50 cents of his property to the petitioner for a sale consideration of Rs. 2 lakhs. It is further pointed out that the complainant himself states that he obtained Rs. 2 lakhs for payment to the petitioner from his son -in -law, who is a businessman. In view of the said transaction, the case of the complainant is not probable, is the contention raised. According to the petitioner, if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. In support of this contention, the petitioner relies on the decision of the Hon'ble Supreme Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [ : (1999) 3 SCC 35]. The petitioner would contend that by cross -examining the complainant the petitioner has proved that the existence of consideration for the cheque in question is improbable or at least doubtful and therefore the complainant ought to have further proved the consideration as a matter of fact, in doing which he has palpably failed in this case, is the contention. According to the petitioner, the cheque was issued in a kuri transaction between the complainant's family and the petitioner. Therefore, the complainant has not discharged his onus in proving the probability of the consideration for the cheque in question. He says so because in cross -examination the complainant himself has admitted the property transaction in which on the very same day the complainant had transferred 50 cents of property to the petitioner for the same amount of consideration, which casts serious doubts on the veracity of the claim of consideration for the cheque set up by the complainant.

(2.) IN answer to the same, the counsel for the 1st respondent -complainant would point out that the petitioner has given evidence to show that there was consideration for the cheque. The 1st respondent particularly relies on Ext.P5, which is the agreement between the petitioner and the 1st respondent in respect of the very same loan transaction, wherein the petitioner had admitted receipt of the amount of Rs. 2 lakhs as a loan on 31.8.2007 itself. According to the counsel for the 1st respondent, this is sufficient proof of consideration for the cheque and on proving Ext.P5, the onus shifts to the respondent to prove otherwise.

(3.) I have considered the rival contentions in detail. I am of opinion that Ext.P5 clinches the issue in favour of the 1st respondent. The signature of the petitioner is a little complicated one, as is clear from Ext.P1 cheque itself which signature is not disputed by the petitioner. The signature in Ext.P5 is exactly the same. The fact that the same was produced and marked later after recalling PW1 for evidence does not dismiss the evidentiary value of Ex.P5, insofar as the petitioner has not been able to bring out anything in cross -examination of PW1 to discredit that document. Therefore, I am of opinion that the 1st respondent has discharged his initial burden of proving the consideration for the cheque in question. In fact after recalling PW1 for examination to prove Ext.P5, the petitioner had cross -examined the 1st respondent elaborately and he did not even put a suggestion to him that the signature in Ext.P5 is not that of the petitioner. It is pertinent to note in this regard that after receiving the statutory notice from the complainant, the petitioner did not choose to send any reply to the 1st respondent disclaiming liability under the cheque. It is also pertinent to note that the petitioner has not chosen to examine himself as a witness to disprove either Ext.P5 or the cheque or its consideration. Therefore, I am satisfied that the 1st respondent has proved beyond a reasonable doubt, the issuance of cheque and the consideration for the same. The petitioner has not been able to discharge his burden to disprove both. Therefore, I do not find any merit in the challenge against the judgments of the courts below. Accordingly, the Crl. R.P. is dismissed with costs of Rs. 10,000/ - (Rupees ten thousand only) payable to the 1st respondent, which shall be recovered from the petitioner and paid to the 1st respondent although the compensation. The amounts already deposited in the court pursuant to interim orders shall be given due credit for while the executing the sentence.