Rajendran vs State Of Kerala
2023 Latest Caselaw 2149 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
                      CRL.A NO. 54 OF 2014
 AGAINST THE ORDER/JUDGMENTCRA 306/2012 OF II ADDITIONAL
  DISTRICT COURT & II ADDITIONAL MOTOR ACCIDENT CLAIMS
                        TRIBUNAL ,KOLLAM
          Crl.L.P. 708/2013 OF HIGH COURT OF KERALA
APPELLANT/1st RESPONDENT/COMPLAINANT:

            RAJENDRAN
            S/O.P.RAGHAVAN, RAJENDRA MANA, MEENADU EAST,
            CHATHANNOOR, KOLLAM DISTRICT.

            BY ADV SRI.C.RAJENDRAN


RESPONDENTS/APPELLANT/ACCUSED:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM-682 031.
    2       GOPALAKRISHNAN PILLAI
            S/O.SREEDHARAN PILLAI, ASHWATHY BHAVAN,
            MARANAD, MARANAD P.O., KOLLAM-691 505.

            BY ADV
            SRI.P.M.PRASANTH - GP


        THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2023,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A.No.54/2014

                                  ..2..




                              JUDGMENT

Dated this the 10th day of February, 2023

This is an appeal filed against acquittal u/s 378(4) of the

Cr.P.C. in a proceedings initiated u/s 138 of the Negotiable

Instruments Act (for short, the NI Act).

2. The appellant herein filed a private complaint at the

Judicial First Class Magistrate Court, Paravur (for short, the trial

court) against the 2nd respondent alleging that he has

committed the offence punishable u/s 138 of the NI Act.

According to the appellant, on 23.02.2007, the 2 nd respondent

borrowed a sum of Rs.1,50,000/- from him and towards the

discharge of the said debt, Ext.P1 cheque was issued. The

cheque on presentation was dishonored with endorsement

'exceeds arrangement'. Ext.P4 notice u/s 138(b) of the NI Act

was issued. It was received by the 2 nd respondent as evident

from Ext.P6 acknowledgment, but there was no compliance

during the statutory period. Hence, the complaint was lodged.

3. The appellant himself gave evidence as PW1 and

two witnesses were examined as PWs 2 and 3. Exts.P1 to P7

were marked on their side. On the side of the defence, Exts.D1 Crl.A.No.54/2014

..3..

and D2 were marked. The trial court on appreciation of

evidence found that the 2nd respondent has committed the

offence punishable u/s 138 of the NI Act and accordingly he

was convicted for the said offence. He was sentenced to

undergo imprisonment till rising of the court and to pay a fine

of Rs.1,75,000/- with default sentence of five months simple

imprisonment. The fine amount on realization was directed to

be paid to the appellant as compensation u/s 357 B of the

Cr.P.C. Challenging the conviction of sentence, the 2 nd

respondent preferred appeal before the II Additional Sessions

Court, Kollam (for short, the appellate court) as Crl.A.

No.306/2012. The appellate court set aside the judgment of

conviction holding that the appellant failed to prove the

execution of Ext.P1. Accordingly, the appeal was allowed.

Challenging the judgment of the appellate court, this appeal

has been preferred.

4. I have heard Smt.Sreevidya R.S, the learned counsel

appearing for the appellant and Sri.P.M. Prasanth, the learned

Public Prosecutor. Even though, notice has been served to the

2nd respondent, there is no representation.

5. The learned counsel for the appellant submitted Crl.A.No.54/2014

..4..

that the appellant has succeeded in proving the execution of

Ext.P1 cheque by examining PWs 1 to 3 and hence

presumption under sections 118(a) and 139 of the NI Act would

come into play and the 2 nd respondent has failed to rebut the

said presumption. The appellate court committed illegality in

acquitting the accused, argued the counsel.

6. To prove the transaction, execution and issuance of

the cheque, the appellant himself gave the evidence as PW1

and two witnesses were examined as PWs2 and 3. PW3 is the

wife of PW1. The case of the appellant is that on 23.02.2007,

the 2nd respondent visited his house and borrowed a sum of

Rs.1,50,000/- and in discharge of the said debt, Ext.P1 cheque

was issued. On the other hand, the case of the 2 nd respondent

is that he borrowed a sum of Rs.75,000/- from the father in law

of the appellant in the year 2003 and a signed blank cheque

was issued as a security to the said transaction and the said

blank cheque was misused and a false complaint was filed.

7. A negotiable instrument including a cheque carries

presumption of consideration in terms of S.118(a) and S.139 of

the N.I. Act. S.118(a) and S.139 read as under:

118. Presumptions as to negotiable instruments.-- Crl.A.No.54/2014

..5..

Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"

"139. Presumption in favour of holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability."

The presumption under S.139 of the Negotiable Instruments

Act is a presumption of law, as distinguished from presumption

of facts. The obligation on the prosecution may be discharged

with the help of presumptions of law and presumptions of fact

unless the accused adduces evidence showing the reasonable

possibility of the non-existence of the presumed fact. There is

the mandate of presumption of consideration in terms of the

provisions of the Act. The onus shifts to the accused on proof of

issuance of cheque to rebut the presumption that the cheque

was issued not for discharge of any debt or liability in terms of

S.138.

8. The Apex Court in Hiten P. Dalal v. Bratindranath

Banerjee [(2001) 6 SCC 16] and in Rangappa v. Sri Mohan Crl.A.No.54/2014

..6..

[(2010) 11 SCC 441] held that the cheque shall be presumed to

be for consideration unless and until, the Court forms a belief

that the consideration does not exist or considers the non-

existence of consideration was so probable that a prudent man

would under no circumstances of the case, act upon the plea

that the consideration does not exist. In Uttam Ram v.

Devinder Singh Hudan and Another [2019 (5) KHC 179], it

was held that when a cheque is issued, it is presumed that the

cheque was drawn for consideration and the holder of cheque

received the same in discharge of an existing debt. It was

further observed that: "A dishonour of cheque carries a

statutory presumption of consideration. The holder of cheque

in due course is required to prove that the cheque was issued

by the accused and that when the same presented, it was not

honoured. Since there is a statutory presumption of

consideration, the burden is on the accused to rebut the

presumption that the cheque was issued not for any debt or

other liability". In Kumar Exports v. Sharma Carpets [(2009) 2

SCC 513], the Apex Court held that "bare denial of the passing

of the consideration and existence of debt, apparently would

not serve the purpose of the accused. Something which is Crl.A.No.54/2014

..7..

probable has to be brought on record for getting the burden of

proof shifted to the complainant. To disprove the

presumptions, the accused should bring on record such facts

and circumstances, upon consideration of which, the Court

may either believe that the consideration and debt did not

exist or their non-existence was so probable that a prudent

man would under the circumstances of the case, act upon the

plea that they did not exist. In Bir Singh v. Mukesh Kumar (AIR

2019 SC 2446), it was held that a person who signs a cheque

and makes it over to the payee remains liable unless he

adduces evidence to rebut the presumption that the cheque

had been issued for payment of a debt or in discharge of a

liability. It was further held that it is immaterial that the cheque

may have been filled in by any person other than the drawer, if

the cheque is duly signed by the drawer. It was also held that

even a blank cheque leaf, voluntarily signed and handed over

by the accused, which is towards some payment, would attract

presumption under S.139 of the Negotiable Instruments Act, in

the absence of any cogent evidence to show that the cheque

was not issued in discharge of a debt. Recently in Kalamani

Tex and Another v. P. Balasubramanian (2021 (2) KHC 517), Crl.A.No.54/2014

..8..

the Apex Court again held that once signature of an accused

on cheque is established, then 'reverse onus' clause becomes

operative, and in such a situation, obligation shifts upon the

accused to discharge presumption imposed upon him.

9. Coming to the facts of the case, though the

execution of Ext.P1 cheque was denied by the 2 nd respondent,

he did not dispute his signature therein. That apart, to prove

the execution of the cheque, PW1, PW2 and PW3 also gave

evidence. Pws 1 to 3 consistently deposed that on 23.02.2007,

the 2nd respondent visited the house of the appellant and

borrowed a sum of Rs.1,50,000/- and signed Ext.P1 cheque in

their presence and handed over the same to the appellant.

Even though, Pws 1 to 3 were cross examined in length, there

is nothing to discredit their evidence. As to the source, PW3

deposed that she has obtained a loan from the bank for

maintenance of her house by pledging her gold ornaments

and utilising the said amount also, the amount was lent to the

2nd respondent. Ext.P7 receipt would substantiate that PW3

had availed loan from the bank. Thus the appellant has given

details about his source also. Once signature, execution and

handing over the cheque are satisfactorily proved, the Crl.A.No.54/2014

..9..

presumption u/s 138 of the Act would come into play. The

appellant has successfully established the signature, execution

and handing over of the cheque. Even though, the defence

contended that the cheque in question was issued to the

father-in-law of the appellant, there is no evidence to

substantiate the same. A reply notice was seen issued by the

2nd respondent raising the said defence, Ext.D1 is the reply

notice. It would show that it was issued only on 13.04.2008,

much after filing of the complaint. There is absolutely no

evidence or circumstances probablising the defence set up by

the accused. The appellate court, without properly

appreciating the evidence, found that the appellant failed to

prove the execution of the cheque. It is true that the cheque

was dated 24.02.2007, but it was presented only on

08.07.2007. The appellate court found that no explanation

was given by the appellant for not presenting the cheque

immediately. The complainant has every right to present the

cheque during its validity. The oral testimony of Pws 1 to 3

are not properly appreciated by the appellate court. The Apex

court in Ravi Kapur v. State of Rajastan [(2012) 9 SCC 284]

has held that once the trial Court has ignored the material Crl.A.No.54/2014

..10..

piece of evidence and failed to appreciate the prosecution

evidence in the correct perspective, then it would amount to

failure of justice enabling the appellate court to interfere with

the judgment of acquittal.

10. For the reasons stated above, I am of the view that

the impugned judgment of acquittal, cannot be sustained and

is liable to be set aside. Hence, the Judgment of acquittal

passed by the appellate court is hereby set aside and the

judgment of the trial court is restored.

The appeal stands allowed.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE

ded/10.02.2023