Kerala High Court

P.C.Mathew, Mullamkuzhy House vs Kunjamma K.V., Madathanikunnel House on 28 May, 2024

Crl. Appeal No. 1074/2008          :1:




                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN
           TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                           CRL.A NO. 1074 OF 2008
JUDGMENT DATED 30.11.2007 IN ST NO.220 OF 2007 OF JUDICIAL MAGISTRATE OF
FIRST CLASS - II, CHENGANACHERRY

APPELLANT/COMPLAINANT:

             P.C.MATHEW, MULLAMKUZHY HOUSE,
             MAMMOODU P.O., CHANGANACHERRY.
             BY ADV JOHN VARGHESE


RESPONDENT/ACCUSED & STATE:

      1      KUNJAMMA K.V., MADATHANIKUNNEL HOUSE,
             PALAMATTOM KARA,, KARUMPANADOM P.O., CHANGANCHERRY.
      2      STATE OF KERALA REPRESENTED
             BY THE PUBLIC PROSECUTOR, HIGH COURT OR KERALA, ERNAKULAM.
             BY ADVS.
             PUBLIC PROSECUTOR
             M.P.MADHAVANKUTTY




             SRI. SANAL. P. RAJ , PUBLIC PROSECUTOR
             R1 BY SRI. ANANTHAKRISHNAN A KARTHA



       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2024, THE

      COURT ON 28.05.2024 DELIVERED THE FOLLOWING:
 Crl. Appeal No. 1074/2008         :2:



                             JOHNSON JOHN, J.
           ---------------------------------------------------------
                       Crl. Appeal No. 1074 of 2008
            --------------------------------------------------------
               Dated this the 28th day of May, 2024.

                                 JUDGMENT

This appeal is filed against the judgment dated 30.11.2007 in

S.T. No. 220 of 2007 of the Judicial First Class Magistrate-II,

Changanacherry, whereby the accused was found not guilty of the

offence under Section 138 of the Negotiable Instruments Act, 1881

(for short 'NI Act') and acquitted under Section 255(1) Cr.P.C.

2. The appellant is the complainant and the complaint was

filed on the allegation that the accused borrowed Rs.75,000/- from

the complainant and for the discharge of the said debt, he issued

cheque dated 28.12.2003 and subsequently, when the complainant

presented the cheque for collection, the same was dishonoured due

to insufficiency of funds and in spite of issuance of statutory notice,

the accused failed to pay the cheque amount.

3. Heard Smt. Ayisha T.S., the learned counsel representing

Sri. John Varghese, the learned counsel for the appellant on

record, Sri. Ananthakrishnan A. Kartha, the learned counsel for the

first respondent and Sri. Sanal P. Raj, the learned Public Prosecutor

appearing for the second respondent, State of Kerala.

4. In the trial court, the complainant was examined as PW1

and Exhibits P1 to P6 were marked and no evidence was adduced

from the side of the accused.

5. After considering the evidence on record and hearing both

sides, the trial court found that the complainant has not succeeded

in establishing that the cheque was drawn by the accused from an

account maintained by her or that, Exhibit P1 cheque was executed

and issued by the accused to the complainant and it was also found

that the complaint was not filed within the statutory period.

6. The learned counsel for the appellant argued that the

signature in the cheque is not disputed and that the accused has

not issued any reply notice and the trial court has not properly

appreciated the evidence of PW1 and that the trial court ought to

have found that the complainant has proved the execution and

issuance of the cheque.

7. But, the learned counsel for the accused/first respondent

pointed out that Exhibit P4 lawyer notice is dated 10.02.2004 and

that Exhibit P6, postal acknowledgment card, would show that the

notice was served to the accused on 16.02.2004 and the complaint

was filed only on 15.04.2004. Admittedly, there was no application

to condone the delay. As per Section 142(1)(b) of the NI Act, the

complaint is to be filed within one month of the date on which the

cause of action arises under clause (c) of the proviso to Section

138 of the NI Act and therefore, there is no reason to disagree with

the finding of the trial court in this regard.

8. The learned counsel for the accused/first respondent

pointed out that the complainant has not disclosed the date on

which he advanced money to the accused, in the complaint or the

statutory notice. In cross examination, PW1 stated that he paid

the money to the accused during November, 2003 and

subsequently, the accused entrusted Exhibit P1 cheque to his wife

on 28.12.2003. PW1 categorically admitted in cross examination

that he was not present in the house when the accused handed

over the cheque to his wife. PW1 also admitted in cross

examination that the cheque was not signed in his presence and

that the cheque was not handed over to him by the accused. PW1

cannot say as to who wrote the contents of Exhibit P1 cheque.

When the learned counsel for the accused made a specific

suggestion that the handwriting and signature in Exhibit P1 cheque

is not that of the accused, PW1 stated that the same is not known

to him. However, PW1 denied the suggestion that the accused

never had any transaction with him and that the transaction was

between the accused and his wife.

9. The evidence of PW1 in cross examination clearly discloses

that he has no direct knowledge regarding the issuance and

execution of the cheque. It is also pertinent to note that even

though PW1 stated that the accused entrusted the cheque to his

wife, he has not examined his wife to prove that it was the accused

who executed and issued Exhibit P1 cheque. Therefore, in the

absence of any prima facie evidence regarding the execution and

issuance of the cheque, the complainant cannot claim the benefit

of the presumption under Section 139 of the NI Act.

10. When the accused was questioned under Section 313

Cr.P.C., he stated that he never had any transaction with the

complainant and that the cheque produced in this case is not his

cheque and he never issued any cheque to the complainant. To

prove the offence under Section 138 of the NI Act, it is necessary

to establish that the cheque in question was drawn by the accused

on an account maintained by him with a banker for payment of any

amount of money to another person from out of that account for

the discharge of any debt or other liability. In this case, in spite of

the specific contention of the accused that Exhibit P1 cheque is not

drawn by him from an account maintained by him with the bank,

the complainant has not taken steps for producing the account

details of the accused.

11. In Bharat Barrel & Drum Mfg. Co. v. Amin Chand

Payrelal [(1999) 3 SCC 35], the Honourable Supreme Court held that

the non existence of consideration for the cheque can be proved by

raising a probable defence and if it is shown that the existence of

consideration was improbable or doubtful or the same was illegal, the

onus would shift to the complainant.

12. In Harbhajan Singh v. State of Punjab (AIR 1966 SC

97), the Honourable Supreme Court held that the onus on an accused

person might well be compared to the onus on a party in civil

proceedings, and just as in civil proceedings the court trying an issue

makes its decision by adopting the test of probabilities

13. The Honourable Supreme Court considered the nature of the

standard of proof required for rebutting the presumption under Section

139 of the Negotiable Instruments Act in M.S.Narayana Menon v.

State of Kerala (2006 (6) SCC 39), and it was held that if some

material is brought on record consistent with the innocence of the

accused, which may reasonably be true, even though it is not positively

proved to be true, the accused would be entitled to acquittal.

14. The Honourable Supreme Court in Basalingappa v.

Mudibasappa [(2019) 5 SCC 418] summarised the principles of law

governing presumptions under Sections 118(a) and 139 of the NI Act in

the following manner:

(i) Once the execution of cheque is admitted S.139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

(ii) The presumption under S.139 is a rebuttable presumption and the onus is on the accused to raise the probable defence.

The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the

parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the accused to come in the

witness box in support of his defence, S.139 imposed an

evidentiary burden and not a persuasive burden.

15. It is well settled that the standard of proof which is

required from the accused to rebut the statutory presumption under

Section 139 of NI Act is preponderance of probabilities and that the

accused is not required to prove his case beyond reasonable doubt.

But, as noticed earlier, the evidence of PW1 in cross examination

would clearly show that he has no direct knowledge regarding the

execution and issuance of Exhibit P1 cheque and that according to

PW1, the cheque was handed over by the accused to his wife and he