Kerala High Court

Padmaja vs Asokan on 31 May, 2024

Crl. Appeal No 249/2007           :1:




                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN
          FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
                           CRL.A NO. 249 OF 2007
JUDGMENT DATED 23.05.2006 IN ST. NO. 287 OF 2006 OF THE JUDICIAL FIRST CLASS
MAGISTRATE VIII, THIRUVANANTHAPURAM

APPELLANT/COMPLAINANT:

             PADMAJA, PARAKOTTUKUNANTHU VEEDU,
             BHASI NAGAR, ULLOOR, MEDICAL COLLEGE P.O,,
             THIRUVANANTHAPURAM.

             BY ADV SRI.R.GOPAN



RESPONDENT/ACCUSED:

      1      ASOKAN, ASOKA B HAVAN,
             ARIKADA JUNCTION,
             PRAVACHAMBALAM P.O,THIRUVANANTHAPURAM.

      2      STATE OF KERALA REP.BY THE PUBLIC
             PROSECUTOR, HIGH COURT OF KERALA.

             R1 BY ADV S.RAJEEV

             R2 BY SRI. VIPIN NARAYAN, SR. PUBLIC PROSECUTOR




THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2024, THE COURT ON

31.05.2024 DELIVERED THE FOLLOWING:
 Crl. Appeal No 249/2007               :2:




                              JOHNSON JOHN, J.
            ---------------------------------------------------------
                         Crl. Appeal No. 249 of 2007
             --------------------------------------------------------
                Dated this the 31st day of May, 2024.

                                     JUDGMENT

This appeal is filed against the judgment dated 23.05.2006 in S.T.

No. 287 of 2006 of the Judicial First Class Magistrate -VIII,

Thiruvananthapuram, challenging the acquittal of the accused under

Section 255(1) Cr.P.C finding him not guilty of the offence under Section

138 of the Negotiable Instruments Act, 1881 (for short 'NI Act').

2. The appellant is the complainant and the complaint was filed on

the allegation that the accused borrowed Rs. 70,000/- from the

complainant and in discharge of the said debt, he issued cheque dated

12.11.2003 and subsequently, when the complainant presented the

cheque for encashment, the same was dishonoured due to insufficiency

of funds in the account of the accused and inspite of issuance of

statutory notice, the accused failed to pay the cheque amount.

3. Heard Sri. Satheeshkumar S.R, the learned counsel

representing the learned counsel for the appellant on record, Smt.

Nourin S. Fathima, the learned counsel for the first respondent and

Sri. Vipin Narayan for the second respondent State of Kerala.

Crl. Appeal No 249/2007 :3:

4. In the trial court, PWs 1 and 2 were examined and Exhibits P1

to P5 were marked from the side of the complainant. From the side of

the accused, DW1 was examined.

5. After considering the evidence on record, the trial court

found that the complainant has not succeeded in proving the

execution and issuance of the cheque and that the cheque is

supported by valid consideration and hence, the accused was

acquitted.

6. The learned counsel for the appellant argued that the

signature in the cheque is not disputed and that the trial court has

not properly appreciated the evidence of PWs 1 and 2. It is also argued

that the trial court ought to have found that the complainant is entitled

for the statutory presumptions under Sections 118 and 139 of the NI Act

and that the accused has not succeeded in rebutting the statutory

presumptions.

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

pointed out that the evidence of PWs 1 and 2 would show that the

complainant has adduced conflicting evidence regarding the original

transaction . It is also pointed out that there is no specific averment in

the complaint or in the chief affidavit of PW1 regarding the date of

execution and issuance of the cheque and therefore, in the absence of Crl. Appeal No 249/2007 :4:

prima facie evidence regarding execution and issuance of the cheque,

the complainant cannot claim the benefit of the statutory presumptions.

8. It is pertinent to note that there is no averment in the

complaint as to when and where the accused executed and issued

Exhibit P1 cheque to the complainant. When the complainant was

examined as PW1, she filed chief affidavit reiterating the averments in

the complaint. In cross examination, PW1 stated that she handed over

money to the accused while they were in her house at Ulloor. She

further admitted that the averment in the complaint that she handed

over the money to the accused at the residence of one C.R. Manojan,

Karippankulam is not true. According to PW1, the said Manoj is not

known to her and she never had occasion to go to Karipankulam. For

convenient reference, the averments in paragraph 1 of the complaint is

extracted below:

"Accused has borrowed an amount of Rs.70,000/- (Rupees Seventy Thousand only) from the complainant at the residence of C.R. Manoj, Kalipankulam for which he has issued a cheque of the Federal Bank Limited, Nemom Branch, bearing No. 357914 dated 12.11.03 for the above said legally enforcible debt."

9. In cross examination, PW1 denied the suggestion that the

accused never had any transaction with her and that she filed the

complaint by obtaining the cheque lost from the possession of the Crl. Appeal No 249/2007 :5:

accused. The husband of PW1 is examined as PW2 and he deposed that

his friend Manoj is residing at Kalipankonam and that the accused

borrowed Rs.70,000/- from the complainant, while they were in the

house of the said Manoj at Kalipankonam. In cross examination, PW2

would say that he cannot say the house name of his friend Manoj or the

T.C. number of the house of Manoj. PW2 also cannot say the father's

name of his friend Manoj.

10. The accused is examined as DW1 and he deposed that he

never had any financial transaction with the complainant and he never

issued any cheque to the complainant. He also stated that the signature

in Exhibit P1 is not his signature. In cross examination DW1 stated that

his friend Unni had conducted mosaic work in the house of the

complainant and for the reason that Unni has collected Rs.5000/- in

excess, he was not permitted to take back his motor from the house of

the complainant and without the knowledge of the accused, his friend

Unni handed over the cheque to the complainant for releasing the motor

and only after the receipt of the statutory notice, the accused came to

know these facts from Unni. According to DW1, Unni has taken

possession of the cheque from his office table without his knowledge.

11. It is pertinent to note that the averment in the complaint is

that the accused borrowed Rs.70,000/- from the complainant while they Crl. Appeal No 249/2007 :6:

were in the house of C.R. Manoj at Kalipankulam. But, the said averment

is categorically denied by PW1 in cross examination. There is no specific

averment in the complaint or in the chief affidavit of PW1 as to when

and where the accused executed and handed over the cheque to the

complainant. The evidence of PW2, the husband of the complainant,

regarding the transaction does not tally with the evidence of PW1.

Therefore, it can be seen that there is no prima facie evidence regarding

the execution and issuance of the cheque.

12. 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 Crl. Appeal No 249/2007 :7:

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.

13. 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 the accused is not required to

prove his case beyond reasonable doubt. 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. As noticed earlier, in this case, the complainant has not