JOHN K. ABRAHAMversusSIMON C. ABRAHAM & ANOTHER

                  [2013] 12 S.C.R. 753


                   JOHN K. ABRAHAM                            A
                             v.
           SIMON C. ABRAHAM & ANOTHER
           (Criminal Appeal No. 2043 of 2013)
                  DECEMBER 05, 2013
                                                               B
 [SURINDER SINGH NIJJAR AND FAKKIR MOHAMED
            IBRAHIM KALIFULLA, JJ.]

     Negotiable Instruments Act, 1881 - s.138 - Dishonour
of cheque - Trial acquitted accused-appellant - Reversal of C
acquittal by High Court - Justification - Held: Not justified -
In order to draw presumption u/s. 118 rlw s. 139, the burden was
heavily upon the respondent-complainant to have shown that
he had the required funds for having advanced money to the
appellant; that issuance of cheque in support of the payment D
advanced was true and that the appellant was bound to make
the payment as had been agreed while issuing the cheque
in favour of the respondent - Respondent, however, was not
even aware of the date when substantial amount of
Rs.1,50,0001- was advanced by him to the appellant; he was E
not sure as to who wrote the cheque; he was not even aware
when exactly and where exactly the transaction took place for
which the cheque came to be issued by the appellant -
Moreover, the respondent took diametrically opposite stands
- Various defects in the evidence of respondent, as noted by F
the trial Court were simply brushed aside by the High Court
without assigning any valid reason - Serious lacuna in the
evidence of respondent which strikes at the root of the
complaint uls.138 - This factor not examined by the High
 Court while reversing the judgment of trial Court - Conviction G
of appellant accordingly set aside.

    The respondent no.1 filed complaint under Section
138 of the Negotiable Instruments Act, 1881, alleging that
the appellant had borrowed a sum of Rs.1,50,000/- from
                           753                                 H
    754      SUPREME COURT REPORTS            [2013] 12 S.C.R.


A him and had issued a cheque for the said sum in
  discharge of the debt and that when the cheque was
  presented for encashment, the same was dishonoured.
  In the questioning of the appellant made under Section
  313 Cr.P.C., the appellant took the stand that his son took
B the cheque from him and that if at all anything was to be
  recovered, it had to be made from the son of the appellant,
  since the appellant had not borrowed any money.

       The trial court held that the respondent-complainant
C was making a prevaricating statement as regards the
  issuance of the cheque, that he was not even aware of
  the date when the amount was said to have been
  borrowed by the appellant, that there was material
  alteration in the instrument and, therefore, the respondent
  failed to establish a case under Section 138 of the
D Negotiable Instruments Act. Consequently, the trial court
  found the appellant not guilty and acquitted him under
  Section 255(1) of Cr.P.C. The High Court reversed the
  judgment of the trial court, and while convicting the
  appellant, imposed the sentence to pay a fine of
E Rs.1,50,000/- as compensation under Section 357(1) of
  Cr.P.C, and therefore the present appeal.

          Allowing the appeal, the Court

       HELD: 1. The High Court committed a serious
F illegality in reversing the judgment of the trial court. While
  reversing the judgment of the trial Court, what weighed
  with the High Court was that in the 313 questioning, it was
  not the case of the appellant that a blank signed cheque
  was handed over to his son and that even in the cross-
G examination it was not suggested to PW-1 (respondent)
  that a blank cheque was issued. The High Court was also
  persuaded by the fact that the appellant failed to send
  any reply to the lawyer's notice, issued by the
  respondent. Based on the above conclusions, the High
H Court held that the presumption under Sections 118 and
    JOHN K. ABRAHAM v. SIMON C. ABRAHAM              755


139 of the Negotiable Instruments Act could be easily A
drawn and that the appellant failed to rebut the said
presumption. On that single factor, the High Court
reversed the judgment of the trial Judge and convicted
the appellant. In order to draw the presumption under
Section 118 read along with 139 of the Negotiable B
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 c
make the payment as had been agreed while issuing the
cheque in favour of the complainant. In the instant case,
however, the respondent was not even aware of the date
when substantial amount of Rs.1,50,000/- was advanced
by him to the appellant, that he was not sure as to who
                                                            0
wrote the cheque, that he was not even aware when
exactly and where exactly the transaction took place for
which the cheque came to be issued by the appellant.
Apart from the said serious lacuna in the evidence of the
complainant, he further admitted as PW.1 by stating once
in the course of the cross-examination that the cheque E
was in the handwriting of the accused and the very next
moment taking a diametrically opposite stand that it is not
in the handwriting of the accused and that it was written
by the complainant himself, by further reiterating that the
amount in words was written by him. The various defects F
 in the evidence of respondent, as noted by the trial Court
were simply brushed aside by the High Court without
assigning any valid reason. Such a serious lacuna in the
evidence of the complainant, which strikes at the root of
a complaint under Section 138, having been noted by the G
trial Judge, which factor was failed to be examined by the
 High Court while reversing the judgment of the trial
 Court, would vitiate the ultimate conclusion reached by
 it. In effect, the conclusion of the High Court would
 amount to a perverse one. The conviction and sentence H
    756        SUPREME COURT REPORTS             [2013] 12 S.C.R.


A   imposed on the appellant is accordingly set aside. [Paras
    9, 10 & 11] [759-D-H; 760-A, 8-H]

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2043 of 2013.
B        From the Judgment and Order dated 15.12.2010 of the
    High Court of Kerala at Ernakulam in Criminal Appeal No. 452
    of 2004.

          Romy Chacko, Kedar Nath Tripathy for the Appellant.
c       Jogy Scaria, Sashi Bhushan Kumar (A.G.) for the
    Respondents.

          The Judgment of the Court was delivered by

D         FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
    granted.

      2. This appeal is directed against the judgment of the High
  Court of Kera la at Ernakulam dated 15th December, 2010
E passed in Criminal Appeal No.452 of 2004.

       3. The issue involved in this appeal arises under Section
  138 of the Negotiable Instruments Act. The complaint was
  preferred by the respondent No.1 before the Chief Judicial
  Magistrate, Pathanamthitta alleging that appellant borrowed a
F sum of Rs.1,50,000/- from him and issued a cheque for the said
  sum on 20.06.2001 drawn on Indian Overseas Bank,
  Plankamon branch in discharge of the debt. It is the further case
  of the respondent-complainant that when the cheque was
  presented for encashment through Pathanamthitta District Co-
G operative Bank, Kozhencherry branch, the same was returned
  by the bankers with the endorsement 'insufficient funds in the
  account of the accused'. The respondent-complainant stated
  to have issued a lawyer's notice on 14.07.2001, which was
  received by the appellant on 16.07.2001, but yet there was no
H
      JOHN K. ABRAHAM v. SIMON C. ABRAHAM                     757
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
 reply from the appellant. Based on the above averments alleged       A
 in the complaint, the case was tried by the learned Chief
 Judicial Magistrate.

      4. The respondent herein was examined as PW.1 and
 Exhibits P-1 to P-6 were marked. None was examined on the            B
 side of the appellant. In the questioning of the appellant made
 under Section 313 of Cr. P. C., the appellant took the stand that
 his son took the cheque from him and that if at all anything was
 to be recovered, ft had to be made from the son of the
 appellant, since the appellant had not borrowed any money.           c
        5. The learned Chief Judicial Magistrate after considering
   the oral and documentary evidence led on behalf of the
   respondent-complainant, held that the respondent-complainant
   was making a prevaricating statement as regards the issuance
   of the cheque, that he was not even aware of the date when         D
   the amount was said to have been borrowed by the appellant,
   that there was material alteration in the instrument and,
   therefore, the respondent failed to establish a case under
· Section 138 of the Negotiable Instruments Act. Consequently,
   the learned Chief Judicial Magistrate found the appellant not      E
   guilty and acquitted him under Section 255(1) of Cr.P.C. The
   respondent preferred the appeal in the High Court of Kerala at
   Ernakulam and by the impugned order the High Court reversed
   the judgment of the learned Chief Judicial Magistrate, convicted
   the appellant and imposed the sentence to pay a fine of            F
 . Rs.1,50,000/- as compensation under Section 357(1) of Cr.P.C.
   In default of making the payment of the fine amount, the
   appellant was directed to suffer simple imprisonment for a
   period of three months.
                                                                      G
      6. We heard Mr. Romy Chacko, learned counsel for the
  appellant and Mr. Jogy Scaria, learned counsel for the 2nd
  respondent. We also perused the material papers placed
  before us, including the judgment of the trial Court as well as
  the High Court. Having considered the above, we are of the          H
    758         SUPREME COURT REPORTS              [2013] 12 S.C.R.


A   view that the High Court was in error in having reversed the
    judgment of the trial Court.

         7. When we examine the case of the respondent-
    complainant as projected before the learned Chief Judicial
8   Magistrate and the material evidence placed before the trial
    Court, we find that the trial Court had noted certain vital defects
    in the case of the respondent-complainant. Such defects noted
    by the learned Chief Judicial Magistrate were as under:

          (a)    Though the respondent as PW-1 deposed that the
c                accused received the money at his house also
                 stated that he did not remember the date when the
                 said sum of Rs.1,50,000/- was paid to him.

          (b)    As regards the source for advancing the sum of
D                Rs.1,50,000/-, the respondent claimed that the
                 same was from and out of the sale consideration
                 of his share in the family property, apart from a sum
                 of Rs.50,000/-, which he availed by way of loan
                 froni the co-operative society of the college where
E                he was employed. Though the respondent stated
                 before the Court below that he would be in a
                 position to produce the documents in support of the
                 said stand, it was noted that no documents were
                 placed before the Court below.
F         (c)    In the course of cross-examination, the respondent
                 stated that the cheque was signed on the date when
                 the payment was made, nevertheless he stated that
                 he was not aware of the date when he paid the sum
                 of Rs.1,50,000/-.
G
          (d)    According to the respondent, the cheque was in the
                 handwriting of the accused himself and the very next
                 moment he made a contradictory statement that the
                 cheque was not in the handwriting of the appellant
H                and that he (complainant) wrote the same.
     JOHN K. ABRAHAM v. SIMON C. ABRAHAM                        759
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
      (e)   The respondent also stated that the amount in               A
            words was written by him.

      (f)   The trial Court has also noted that it was not the
            case of the respondent that the writing in the
            cheque and filling up of the figures were with the          B
            consent of the accused appellant.

    . 8. In light of the above evidence, which was lacking in very
many material particulars, apart from the contradictions therein,
the trial Court held that the appellant was not guilty of the offence
alleged against under Section 138 of the Negotiable                     C
Instruments Act and acquitted him.

      9. Keeping the above factors in mind, when we examine
the judgment impugned in this appeal, we find that the High
Court committed a serious illegality in reversing the judgment          D
of learned Chief Judicial Magistrate. While reversing the
judgment of the trial Court, what weighed with the learned Judge
of the High Court was that in the 313 questioning, it was not
the case of the appellant that a blank signed cheque was
handed over to his son and that even in the cross-examination           E
it was not suggested to PW-1 that a blank cheque was issued.
The High Court was also persuaded by the fact that the appellant
failed to send any reply to the lawyer's notice, issued by the
respondent. Based on the above conclusions, the High Court
 held that the presumption under Sections 118 and 139 of the            F
 Negotiable Instruments Act could be easily drawn and that the
 appellant failed to rebut the said presumption. On that single
factor, the learned Judge of the High Court reversed the
judgment of the trial Judge and convicted the appellant. It has
to be stated that in order to draw the presumption under                G
 Section 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             H
    760      SUPREME COURT REPORTS              (2013) 12 S.C.R.


A accused was bound to make the payment as had been agreed
  while issuing the cheque in favour of the complainant.

        10. Keeping the said statutory requirements in mind, when
  we examine the facts as admitted by the respondent-
s complainant, as rightly concluded by the learned trial Judge, the
  respondent was not even aware of the date when substantial
  amount of Rs.1,50,000/- was advanced by him to the appellant,
  that he was not sure as to who wrote the cheque, that he was
  not even aware when exactly and where exactly the transaction
C took place for which the cheque came to be issued by the
  appellant. Apart from the said serious lacuna in the evidence
  of the complainant, he further admitted as PW.1 by stating once
  in the course of the cross-examination that the cheque was in
  the handwriting of the accused and the very next moment taking
D a diametrically opposite stand that it is not in the handwriting
  of the accused and that it was written by the complainant
  himself, by further reiterating that the amount in words was
  written by him. We find that the various defects in the evidence
  of respondent, as noted by the trial Court, which we have set
E out in paragraph 7 of the judgment, were simply brushed aside ·
  by the High Court without assigning any valid reason. Such a
  serious lacuna in the evidence of the complainant, which strikes
  at the root of a complaint under Section 138, having been
  noted by the learned trial Judge, which factor was failed to be
F examined by the High Court while reversing the judgment of the
  trial Court, in our considered opinion would vitiate the ultimate
  conclusion reached by it. In effect, the conclusion of the learned
  Judge of the High Court would amount to a perverse one and,
  therefore, the said judgment of the High Court cannot be
G sustained.
        11. Having regard to our above conclusion, this appeal
   stands allowed. The order impugned is set-aside, the conviction
   and sentence imposed on the appellant is also set aside.

H B.B.B.                                         Apµeal allowed.