Asok Chittalloor v. K.K. Harish Nair and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** **CRL.A.No.49 OF 2010** **(AGAINST THE JUDGMENT IN CRL.A.NO.721/2007 DATED 07-09-2009 OF ADDITIONAL SESSIONS JUDGE, THRISSUR, FAST TRACK COURT NO.II (ADHOC) (S.T.NO.3388/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURTIII, THRISSUR DATED 29.9.2007)** ## **APPELLANT/COMPLAINANT:** **ASOK CHITTALLOOR, AGED 50 S/O.GOVINDHAN NAIR, IX/1133, SHIVAM, NEAR SANTHI, NAGAR, RAVIVARMAPURAM P.O., THRISSUR, REP.BY, POWER OF ATTORNEY HOLDER THULASEEDHARAN NAIR, S/O.SANKU NAIR, SAUPARNIKA, VATTIYASALA, THYKKAD, TRIVANDRUM DISTRICT.** **BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR** ## **RESPONDENTS/ACCUSED & STATE:** **1 K.K.HARISH NAIR, AGED 53 S/O.BALAKRISHNAN NAIR, THEKKEKKARA VEEDU, (RADHIKA MANDIR), A.K.ROAD, NAYARANGADI, VYLATHUR P.O., THRISSUR DISTRICT, LECTURER, P.C.THOMAS INSTITUTE OF ENTRANCE STUDIES, EAST FORT, THRISSUR. 2 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY ADV. SRI.P.SANTHOSH PODUVAL R2 BY P.P. SRI.RENIL ANTO KANDAMKULATHY** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.49 of 2010 2 ## **JUDGMENT** This is an appeal against acquittal filed under Section 378(3) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.'). The appellant herein was the complainant in S.T.No.3388/2004 on the files of the Judicial First Class Magistrate Court-III, Thrissur and he assails here, the judgment dated 7.9.2019 passed by the Addl.Sessions Judge, Thrissur, Fast Tract Court (Adhoc)-II whereby and whereunder the conviction and sentence passed in S.T.No.3388/2004 against the first respondent herein/the accused handed down by the trial court was set aside. 2. The facts, in brief are as follows:- Dishonour of cheques bearing Nos.968090, 968098 & 968099, all dated 31.3.2004 for Rs.1,25,000/- each, drawn on South Indian Bank Ltd., East Fort, Thrissur on account of insufficiency of funds in the account of the first respondent led to the filing of the aforesaid complaint which came to be taken on file as S.T.No.3388/2004. The case of the appellant is that the first respondent had borrowed an amount of Rs.3,75,000/- from him on 5.1.2003 agreeing to repay the same on demand. On demanding for repayment the first respondent issued the aforementioned cheques on 4.3.2004 and they were Crl.A.No.49 of 2010 3 dishonoured on presentation for collection through UCO Bank, Thrissur, on the aforesaid ground, on 8.4.2004. With respect to the compliance with the procedural formalities that should precede a prosecution for offence under Section 138 of the Negotiable Instruments Act no case of non-compliance was canvassed, evidently before the Sessions Court and naturally, before this Court, as well. On the side of the appellant herein/complainant he was examined as PW2 and his power of attorney holder was examined as PW1. On his side Exts.P1 to P12 were marked. On the side of the first respondent Ext.D1 was marked and none was examined. The first respondent while being examined under Section 313, Cr.P.C., denied all the incriminating circumstances and filed a statement denying transactions with the appellant. His case in defence, as disclosed in the statement, is that he borrowed an amount of Rs.1,25,000/- from one Jagadish who had a dispute with the appellant; that the appellant claimed that it was his money that was paid to him; that he had paid an amount of Rs.70,000/- towards interest; and that the aforesaid Jagadish and PW1 invited him to 'C.P Tower' and then, obtained three blank cheque leaves by threat and force. In short, he took up a case thereunder that the appellant herein had foisted the case using those three cheque leaves obtained from him by threat and force for and on behalf of PW1. Evidently, the learned Magistrate on appreciation of Crl.A.No.49 of 2010 4 the evidence and the rival contentions ultimately found the first respondent-accused guilty and convicted him under Section 138 of the Negotiable Instruments Act (N.I.Act) and sentenced him to undergo imprisonment till the rising of the Court and also ordered to pay a compensation of Rs.3,45,000/- under Section 357(8) of the Cr.P.C. to the appellant/the complainant and in default of payment of the same to undergo simple imprisonment for three months. As per the impugned judgment dated 7.9.2009 the learned Sessions Judge allowed the appeal and consequently set aside the conviction and sentence. Hence, this appeal against the judgment of acquittal. 3. Obviously, there is divergent findings by the trial court and the first appellate court. As noticed hereinbefore, the learned Magistrate held the first respondent-accused guilty and convicted him under Section 138 of N.I. Act. The discussion under point Nos.1 and 2 at paragraph 5 of the judgment of the learned Magistrate as also the evidence on record would reveal that the case of the appellant was that an amount of Rs.3,75,000/- was borrowed from the appellant (PW2) by the first respondent - accused and remained unpaid even after demand upon dishonouring of the cheques. Virtually, it was that case which was held as proved by the learned Magistrate. In the appeal by the first respondent - accused the Sessions Court reversed the judgment of Crl.A.No.49 of 2010 5 conviction and acquitted the first respondent. Thus, evidently, based on the same set of evidence divergent findings have been entered into by the Courts below. 4. Heard the learned counsel for the appellant, the learned counsel for the first respondent and also the learned Public Prosecutor. The State is only a formal party. 5. The appellant assails the judgment of acquittal mainly on the following grounds:- That the appellate Court had not properly appreciated the evidence on record; that Ext.D1 document was wrongly relied on by the appellate Court to upturn the judgment of conviction of the first respondent; that Ext.D1 got no relation with the transaction in question was accepted on appreciation of evidence by the learned Magistrate and without a proper appreciation the learned Sessions Judge relied on the very same document to acquit the first respondent. In ground (C) of the appeal the appellant would contend that though in the first instance there was a faint admission by him that Ext.D1 was issued in connection with the transaction alleged in the complaint, he explained the admission by clarifying that the transaction in Ext.D1 is different from the one involved in the case on hand. In such circumstances, in the absence of examination of the person to whom the letter was issued, the appellate Crl.A.No.49 of 2010 6 court was not justified in relying on Ext.D1 when indisputably, it is not one issued to the first respondent. The appellant would further contend that though he deposed that the cheques are in the handwriting of the first respondent no attempt was made by the first respondent/accused to take the cheques for comparison or examination by an expert; that the first respondent had not mounted the box and subjected himself for cross examination and that the Sessions Judge had failed to properly marshal the evidence in the light of the principles laid down by the Apex Court. 6. Per contra, the learned counsel for the first respondent contended that the learned Sessions Judge had rightly re-appreciated the entire evidence in exercise of the appellate power and as per the impugned judgment the perverse appreciation of the evidence on record by the learned Magistrate was set right by the Sessions Judge by entering into rightful conclusions based on the evidence on record. That apart, he would contend that a bare perusal of the judgment of the learned Magistrate would reveal that there was no marshaling of evidence therein to support the findings. To put it succinctly, according to the first respondent, there is absolutely no reason to interfere with the judgment of acquittal by the appellate Court. Crl.A.No.49 of 2010 7 ## 7. Firstly, I will refer to the principles that should guide in the matter of consideration of an appeal against acquittal. I may hasten to add that I am not oblivious of the fact that the case on hand being an appeal against a judgment of acquittal rendered by the appellate court in reversal of a judgment of conviction passed by the trial court and thus involving divergent findings by the lower courts and thereby stands not on the very same footing as that of an appeal against an acquittal reinforcing the presumption of innocence. In the decision in **V.N.Ratheesh** v. **State of Kerala** reported in **AIR 2006 SC 2667** the Apex Court held that in an appeal against acquittal the High Court has full powers to review at large the evidence on which an order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. In the decision in **State of Madhya Pradesh** v. **Dharkole alias Govind Singh and others (AIR 2005 SC 44)** the Apex Court held that in a case where acquittal was recorded the Appellate Court should not lightly interfere with the same. At the same time, it was further held therein that where the evidence had not been perfectly analysed or the Court had acted on surmises or conjectures, it is the duty of the Appellate Court to set right the wrong. ## In **K.Ramakrishna Unnithan** v. **State of Kerala (AIR 1999 SC 1428)** the Apex Court held that the plenitude of power available to the High 8 Crl.A.No.49 of 2010 Court in hearing an appeal against conviction is the same as that available to a Court hearing an appeal against conviction. In the decision in **Allarakha K. Mansuri** v. **State of Gujarat** reported in **AIR 2002 SC** **1051** the Apex Court held that in appeals against acquittal the paramount consideration should be to avoid miscarriage of justice and miscarriage of justice which might arise from the acquittal of guilty is not less than from the conviction of an innocent. I will have to consider this appeal under Section 378(3), Cr.P.C. bearing in mind the aforesaid principles and analysing the evidence on record. 8. I am also of the view that for considering the rival contentions it is only profitable to refer to relevant provisions under the N.I. Act and settled positions of law. I am concerned with presumptions under Sections 118 and 139 of the N.I. Act. There can be no doubt with respect to the position that the presumption under Section 118 of the N.I. Act is one as to consideration. It lays down a special rule of evidence applicable to negotiable instruments. The presumption under Section 118 is one of law and thereunder a Court shall presume inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. As a matter of fact, though the presumption available under Section 118 is one as to consideration it would not take in a presumption about execution of the instrument in question. Now, I Crl.A.No.49 of 2010 9 will refer to Section 139 of N.I. Act. The presumption available thereunder is to be drawn against the drawer and in favour of the holder that, unless the contrary is proved, the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. Certainly, the presumptions available under the aforesaid sections are rebuttable. In the decision in **Hiten P.Dalal** v. **Bratendranath Banerji** reported in **(2001) 6 SCC 16** the Apex Court held that under Section 118, N.I. Act unless the contrary is proved it is to be presumed that the Negotiable Instrument had been made or drawn for consideration and under Section 139, N.I. Act the Court has to presume, unless the contrary is proved that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. Though the presumption is rebuttable the burden to prove that the cheque had not been issued for a debt or liability is on the accused. In the said decision it was further held that it is obligatory on the Court to raise the presumption in every case where the factual basis for the reasoning of the presumption had been established. Such a presumption is a presumption of law, as distinguishable from a presumption of fact which describes provisions by which the Court 'may presume' a certain state of affairs. In the decision in **Kochayippa** v. **Suprasidhan** reported in **2002 (3) KLT 652** this Court held that no Crl.A.No.49 of 2010 10 discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In **Rangappa** v. **Mohan** reported in **AIR 2010 SC 1898** the Apex Court held:- “The presumption mandated by S. 139 of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However there can be no doubt that there is an initial presumption which favours the complainant.” In effect, it throws the burden of proof of failure of consideration on the ## matter. In the decision in **Devan** v. **Krishna Menon (2010 (2) KLT** **397)** this Court held that a complainant need not establish the original cause of action in meticulous detail and once the signature, execution and handing over the charge is satisfactorily proved by the evidence of the complainant, a presumption under Section 139 of N.I. Act comes into play and the same would hold the field until the accused discharges the burden on him at least by inferior standards of preponderance of probabilities. 9. The trial court as also the Appellate Court found that the cheques involved in the case relate to an account maintained by the first respondent and in fact, the said fact is not at all disputed by the first respondent and it is indisputable in view of Ext.P3 series of dishonour memos. They would further reveal that there was no sufficient fund in Crl.A.No.49 of 2010 11 the account maintained by the first respondent. Ext.P2 dishonour memo would reveal that the appellant herein presented the cheques for encashment through UCO Bank and they were dishonoured on the ground of insufficiency of funds. Upon dishonour of the said cheques for the aforesaid reason evidently, he had issued Ext.P5 notice. As noticed hereinbefore, it is after complying with all statutory formalities that should precede a prosecution for offence under Section 138 of N.I. Act that the appellant herein filed the complaint before the learned Magistrate and as already noticed, no case of non-compliance with the formalities that should precede a prosecution for the offence under Section 138, N.I.Act was raised by the first respondent. The case of the first respondent would reveal that he had not actually disputed the execution of Ext.P1 series of cheques. But, at the same time, his defence was that the said cheques were executed due to coercion and threat of PW1 and one Jagadish, who, according to the first respondent, lent an amount of Rs.1,25,000/- to him and that he had no transaction with the appellant. Further it is his case that a dispute arose between PW1, the power of attorney holder of the appellant and the aforesaid Jagadish and according to PW1, it was his money that was paid to the first respondent. The first respondent would contend that owing to this dispute he could not make repayment. It is also his case that PW1 and Crl.A.No.49 of 2010 12 the aforesaid Jagadish invited him to 'C.P. Tower', Thrissur and under threat and coercion obtained the three blank cheque leaves which were produced before the Court as Ext.P1 series. The appellant herein foisted a false case against him making use of such cheque leaves, for and on behalf of PW1. It is to establish his case that the first respondent produced Ext.D1 letter issued by PW1 to one P.C.Thomas, in whose institution the accused was working as a teacher. In the said circumstances one aspect can be said to be with certitude that going by the judgments of both the learned Magistrate and the learned Sessions Judge both of them, on appreciation of the evidence on record, held that the appellant had laid foundation for drawing the presumption under Section 139 of N.I. Act lest they would not have proceeded to consider the question whether the first respondent had succeeded in rebutting the presumption available under Section 139 of N.I. Act or not. While the learned Magistrate repelled the case in defence set up by the first respondent to rebut the presumption available in favour of the appellant the learned Sessions Judge held such appreciation of evidence by the learned Magistrate as one on a wrong perspective that led to an erroneous finding of conviction, based on a different approach in the matter of appreciation of the same set of evidence. Crl.A.No.49 of 2010 13 ## 10. In **Hiten P. Dalal's** case (supra) the Apex Court held that it is obligatory on the part of the Court to presume the liability of the drawer for the amount of the cheque in every case where the factual basis for such presumption is established. The Apex Court compared evidentiary presumptions in favour of the prosecution with the presumption of innocence in the following terms:- “22......... Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, “after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the “prudent man”.” 11. The obligation on the prosecution to prove the case may be discharged with the help of presumptions of law or fact unless the Crl.A.No.49 of 2010 14 accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. The Apex Court also held that the obligation to prove contrary is not the obligation to disprove the prosecution case in its entirety. The presumption is only on the question whether the cheque is issued for the discharge in whole or in part of any debt or liability and until the contrary is proved this presumption would continue to remain. Evidently, in holding so the Apex Court followed the agreement in its earlier decision in **State of T.N.** v. **A.Vaidyanatha Iyer (AIR 1958 SC 61)** . In **Krishna Janardhan Bhat** v. **Dathathreya G. Hegde [(2008) 4 SCC 54)],** the Apex Court held that it is not imperative for rebutting the presumption that the accused must step into the witness box. It was held in paragraph 32 therein thus:- “32. An accused for discharging the burden of proof placed upon him under a status need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” In **Krishna Janardhan Bhat's** case (supra) the Apex Court went on to consider the question as to the standard of proof required on the part of an accused and that of the prosecution and drew the distinction between them. It was held that the prosecution must prove the guilt of an accused beyond all reasonable doubt whereas, the standard of proof required on the part of an accused is preponderance of probabilities. In Crl.A.No.49 of 2010 15 the context and nature of the rival contentions paragraph 24 of the decision in **Hiten P. Dalal's** case (supra) also assumes relevance. The Apex Court held:- “24. Judicial statements have differed as to the quantum of rebutting evidence required. In _**Kundan Lal Rallaram**_ v. **Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316** , this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in _**Dhanvantrai Balwantrai Desai**_ v. **State of Maharashtra, AIR 1964 SC 575,** where this Court reiterated the principles enunciated in _**State of Madras**_ v. _**Vaidyanath Iyer**_ **AIR 1958 SC 61** and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonable be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is Crl.A.No.49 of 2010 16 supported by proof, the presumption created by the provision cannot be said to be rebutted ............." After holding thus the Apex Court went on to consider whether in that case the appellant had supported his defence by any proof sufficient to rebut the presumption drawn against him. It is also apposite to refer to the decision of the Apex Court in **Bir Singh** v. **Mukesh Kumar** reported in **AIR 2019 SC 2446** . That was a case where appeals were directed against a judgment of the High Court of Pubjab and Haryana passed in revisional jurisdiction under Section 397, Cr.P.C., upturning the concurrent findings of the courts below and consequently, acquitting the accused/the respondent therein, of the charge under Section 138 of the N.I. Act. The Apex Court held that the High Court had mis-construed Section 139 of the N.I. Act, which mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption contemplated under Section 139 of the N.I. Act is a rebuttable presumption and after referring to several of its earlier decisions the Apex Court held that, nonetheless, the onus of proving that the cheque was not in discharge of any debt or other liability, is on the drawer of the cheque. In paragraphs 22 to 27 therein the Apex Court referred to its earlier decisions as hereunder:- Crl.A.No.49 of 2010 17 “22. In **Hiten P. Dalal** v. **Bratindranath Banerjee, 2001 SCC (Cri) 960: AIR 2001 SC 3897 : 2001 (106) Comp Cas 574 : 2001 Cri.L.J. 4647** this Court held that both S.138 and S.139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in **State of Madras** v. **Vaidyanatha Iyer, 1958 KHC 395 : AIR 1958 SC 61 : 1958 SCR 580 : 1958 (2) LLJ 653 : 1958 Cri.L.J. 232** this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under S.139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. 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 nonexistence of the presumed fact as held in **Hiten P. Dalal** (supra). 24. Presumption of innocence is undoubtedly a human right as contended on behalf of the respondent-accused, relying on the judgments of this Court in **Ranjitsing Brahmajeetsing Sharma** v. **State of Maharashtra and Another, 2005 KHC 1131 : 2005 (5) SCC 294 : AIR 2005 SC 2277 : 2005 CriLJ 2533** and **Rajesh Ranjan Yada @ Pappu Yadav** v. **CBI through its Director, 2007 KHC 3002 : 2007 (1) SCC 70 : AIR 2007 SC 451 : 2007 CriLJ 304 : 2007 (1) SCC (Cri) 254.** However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above. 25. In **Laxmi Dyechem** v. **State of Gujarat and Others, 2012 (4) KHC 826 : 2012 (13) SCC 375 : 2013 (1) KLT 167 : 2013 (1) KLJ 441 : 2013 CriLJ 3288 : 2013 (121) AIC 110** this Court reiterated that in view of S.139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held "however, this presumption coupled with the object of Chapter Crl.A.No.49 of 2010 18 XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of S. 138 of the Act". 26. In **Kumar Exports** v. **Sharma Carpets, 2009 KHC 219 : 2009 92) SCC 513 : 2009 (1) KLD 391 : 2009 (1) KLT 197 : 2008 (16) SCALE 372 : AIR 2009 SC 1518 : 2009 (1) SCC (Cri) 823 : 2009 (2) Guj LR 1240 : 2009 (3) MPLJ 114 : 2009 (4) Mah LJ 23** this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. 27. In **K.N. Beena** v. **Muniyappan and Another, 2001 KHC 832 : 2001 (8) SCC 458 : 2001 (3) KLT 950 : 2002 (1) KLJ 13 : AIR 2001 SC 2895 : 2002 SCC (Cri) 14 : 2001 CriLJ 4745** this Court held that in view of the provisions of S.139 of the Negotiable Instruments Act read with S.118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability.” (underline supplied) 12. Bearing in mind the said provisions carrying the presumptions and the aforesaid decisions I will analyse the case on hand Crl.A.No.49 of 2010 19 with reference to the evidence on record. As noticed hereinbefore, on the side of the appellant-complainant the oral evidence consists of his evidence as PW2 and that of his power of attorney as PW1. Exts.P1 to P12 were also marked on his side. No oral evidence was adduced on the side of the first respondent though Ext.D1 letter was marked. True that he has filed a written statement while being examined under Section 313, Cr.P.C. But then, a statement filed under Section 313, Cr.P.C. is not strictly an evidence. It can only be the accused's stand or version by way of explanation, to the incriminating material appearing against him which are brought to his notice. Evidently, the first respondent/the accused did not depose as a witness on oath and he had only made a statement in writing. I have already referred to the documentary evidence adduced by the appellant to establish his case. In fact, they were taken into account by both the trial and appellate courts, as is evident from the judgments. I have also gone through the argument notes submitted by both sides. Bearing in mind such contentions I will proceed further with the consideration. Evidently, the trial court based on the evidence held that the appellant had succeeded in proving his case to earn the benefit of presumption available under Section 139 of N.I. Act. In the impugned judgment after taking note of the evidence adduced by the appellant as also the oral testimonies of PWs 1 and 2 and Crl.A.No.49 of 2010 20 thereafter the case raised in defence by the first respondent herein the appellate court held: “This is sufficient enough a proof from the side of the appellant herein for rebuttal of the presumption, if at all available on the evidence of PWs 1 and 2 herein and on which situation, the aid of presumption get lost in view of the decision reported in **2009 (1) KLT 197 (SC)** cited supra.” In the context of the oral testimony of PW2, the complainant and the documentary evidence let in by him as discussed in the appellate judgment itself the decision of this Court in **Devan's** case (supra) the decisions of the Apex Court in **Hiten P.Dalal's** case, **Kochayippa's** case, **Rangappa's** case and **Bir Singh's** case (supra) would assume relevance to consider whether the appellate court was correct in arriving at such a finding. In view of the evidence on record it cannot be said that the appellant had failed to satisfactorily prove the signature in and execution of the cheques in question viz., Ext.P1 series. When once they are proved going by the decisions the complainant is entitled to the presumption under Section 139 of the N.I. Act should come into operation and thereupon, it would hold the field until the accused discharges his burden, in other words, rebuts the presumption at least by inferior standard of preponderance of possibilities and probabilities as applicable in a civil case. The complainant examined himself as PW1 and proved Ext.P1 series to Ext.P12. Both PW1, the Crl.A.No.49 of 2010 21 power of attorney holder of the complainant and the complainant as PW2 gave evidence to the effect that the first respondent - accused borrowed an amount of Rs.3,75,000/- from the complainant. According to them, Ext.P1 cheque leaves were issued in discharge of the said liability. Though the first respondent took up a case in defence, as noticed hereinbefore, virtually he had admitted signature in and execution of, Ext.P1 series of cheques. As mentioned hereinbefore, the stand of the first respondent - accused is that the cheques were executed under threat and coercion. I will consider the case took up by the first respondent - accused later after considering the question whether, in the circumstances the appellant could claim the benefit of presumption available under law in his favour. The oral evidence of PW1 is supported by the production of Ext.P1 series of three cheques each for a sum of Rs.1,25,000/- and the other documentary evidence. Ext.P3 series of dishonour memos would reveal that they relate to an account maintained by the first respondent and that they were dishonoured due to insufficiency of funds. Ext.P4 is the notice received by the appellant from his banker. Ext.P5 is the copy of the statutorily required preprosecution notice and it was issued by registered post as is evidenced from Ext.P6. Ext.P7 certificate reveals transmission of Ext.P5 through post under certificate of posting. Ext.P8 is the acknowledgment card Crl.A.No.49 of 2010 22 revealing the receipt of Ext.P5 by the first respondent from his office. Ext.P9 would show that Ext.P5, which was sent in his house address, was unclaimed. Ext.P10 is the power-of-attorney issued in favour of PW1. Ext.P11 is the reply notice dated 21.6.2004 of the first respondent issued to the Advocate who issued Ext.P5 on behalf of the appellant. The case of PW2 gets support from the evidence of PW1, as well. The evidence of PW2, the complainant supported by the aforesaid documentary evidence, according to me, is sufficient to hold that factual foundation was laid by the appellant - complainant to make it obligatory on the Court to draw presumption under Sections 118 and 139 of the N.I. Act. In terms of Section 118, N.I. Act unless the contrary is proved it is to be presumed that the negotiable instrument had been made or drawn for consideration and in terms of Section 139, N.I. Act the Court has to presume, unless the contrary is proved that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or liability. Going by the decision of this Court in **Devan's** case (supra) and the decisions of the Hon'ble Apex Court in **Hiten P. Dalal's** case, in **Kochayippa's** case, in **Rangappa's** case and **Bir Singh's** case, referred supra, when the facts required to form the basis of a presumption of law are provided no discretion is left with the Court but to draw the statutory presumptions. Now, the question is whether the first respondent has Crl.A.No.49 of 2010 23 ## succeeded in rebutting the presumptions available under law. 13. There can be no doubt with respect to the position that the accused in defence need not adduce evidence. To rebut the presumption the accused could not only rely on the defence evidence adduced by him and also would rely on the improbabilities in the prosecution case. True that, the first respondent has taken up a case in defence, as is evident from his written statement filed under Section 131, Cr.P.C. that he had borrowed an amount of Rs.1,25,000/- from Jagadish and got no transaction at all with the appellant. It is also his case in defence that he paid an amount of Rs.70,000/- towards interest and the balance principal amount could not be paid owing to a dispute arose between Jagadish and PW1, who is the power of attorney holder of the complainant (PW2). According to him, the said Jagadish and PW1 called him to a Hotel by name 'C.P.Tower' and from there he was coerced and threatened and was compelled to execute Ext.P1 series of cheques and those cheques were used by the appellant herein. When threat and coercion was taken as defence for execution of cheques certainly it is for the accused who took up such defence to prove the same with cogent evidence. What is the evidence let in in that regard by the first respondent ? Besides his assertion in the statement filed under Section 313, Cr.P.C. he did not let in any evidence in that regard. In the decision Crl.A.No.49 of 2010 24 ## in **Devender Kumar Singla** v. **Baldev Krishan Singla (AIR 2004 SC** **3084)** the Apex Court held that statement under Section 313, Cr.P.C. is not evidence and it is only the accused's stand or version by way of explanation, on the incriminating material appearing against which are brought to his notice. Relying on its earlier decision in **Trilok Chand Jain** v. **State of Delhi [(1975) 4 SCC 761)** the Apex Court in **Hiten.P.Dalal's** case held in paragraph 38 thus:- “ **38.** The burden was on the appellant to disapprove (sic disprove) the presumptions under Sections 138 and 139, a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the four cheques were given for intended transactions was not the answer given by the appellant to the notice under Section 138. Then he had said that the cheques were given to assist the Bank for restructuring (Ext.H). It was necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, in its totality, rendered the existence of the fact presumed, improbable. (Vide Trilo Chand Jain v. State of Delhi ((1975) 4 SCC 761). The appellant has done neither. In the absence of any such proof the presumptions under Sections 138 and 139 must prevail.” In this context paragraph 39 in the decision in **Bir Singh's** case (supra) also assumes relevance and it reads thus:- “ **39** . It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a Crl.A.No.49 of 2010 25 fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.” Thus, it is obvious that having raised a case, in defence, of coercion and threat for execution of the cheques in question the burden was on the first respondent - accused to establish his case. Nothing is brought on record at least to show that in respect of the said alleged incident he had lodged a complaint against the appellant, PW1 and the aforesaid Jagadish. Since his case is that he had executed the cheques under coercion and threat absence of cogent evidence for coercion and threat would make it clear that the presumptions did not stand rebutted, by merely raising such a case, in defence, in the written statement. 14. Therefore, the next question is whether the first respondent herein had succeeded in rebutting the presumption under Section 139 read with Section 118 of N.I. Act, in any other manner. Impugned judgment would reveal that to hold in favour of the first respondent that he had succeeded in doing so the appellate court relied on Ext.D1 and to certain extent the evidence of PW1. In fact, it was during the examination of PW1 that Ext.D1 was marked. Evidently, it was marked with objection and the said fact was duly taken note of by the appellate court. The appellate court took note of the fact that while Crl.A.No.49 of 2010 26 confronted with Ext.D1, PW1 admitted that he was its author. Be that as it may, I will consider whether the appellate court was justified in heavily relying upon it for the purpose of upturning the judgment of conviction. In that regard, the cross examination of PW1 with reference to Ext.D1 assumes relevance:- “ജഗദ�ഷ�ന� കയ�ൽ ന�ന� ന�ങൾക� ക�ട�നള പ�സക� വ�ണ�യന� Ext.D1 letter അയചത� (Q) ശര�യ� (A) ന�ങൾക� വ�ണ� ബ�ന�മ� ആയന� ��ദ� ഈ case വബ�ധ�പ�ചത� (Q) അ� (A).” Thus, the cross examination of PW1 would reveal that even while confronting him with Ext.D1 the suggestion put by the first respondent - accused was that 'whether what was dealt with in Ext.D1 was the transaction between PW2 and one Jagadish'. But even those are only suggestions and are not proven case. PW1 repudiated those suggestions. Hence, in the absence of any further cogent evidence those suggestions will remain only as suggestions and cannot be taken as a circumstance against PW2, the complainant. That apart, the oral testimony of PW1 itself would reveal that though initially he stated that Ext.D1 was issued in connection with the transaction alleged in the complaint later on, he clarified that the two transactions are different. PW2, the complainant, while being cross-examined, stoutly refuted the suggestion that the transactions involved in the case on hand and in Crl.A.No.49 of 2010 27 Ext.D1 are one and the same and he had clearly deposed that he got no knowledge about the transaction involved in Ext.D1. It is in this context that the very suggestion put in by the first respondent to PW1, while cross examining him would assume relevance. As already stated it was suggested to PW1 whether Ext.D1 deals with the amount which the aforesaid Jagadish owe to PW1 **.** Even according to the first respondent it was only a letter written by PW1 to one P.C.Thomas who was his employer. The said P.C.Thomas was not examined. According to the next suggestion PW1 got a claim case that the money borrowed by the first respondent was the money lent by him to Sri.Jagadish. Thus, it is evident that it was not a letter of PW2 to the said Sri.P.C.Thomas. Hence, when PW2, the complainant repudiated the suggestions and deposed that he did not know about the transaction mentioned in Ext.D1 how could much weight be given to it and how it could be used against the appellant-complainant. It is a fact that but for Ext.D1 there was absolutely no evidence let in by the first respondent - accused. A scanning of the impugned judgment of acquittal passed by the appellate court would reveal that Ext.D1 was heavily relied on by the appellate Court to hold that the presumption, if at all drawn in favour of the complainant would stand rebutted. As a matter of fact, the evidence of Crl.A.No.49 of 2010 28 PW2, the complainant and the evidence let in by him to establish his case which was sufficient to make the Court to draw statutory presumptions and the failure of the first respondent to let in any evidence to prove his case of coercion and threat were ignored by the appellate Court. Evidently, the appellate court based on Ext.D1 certain inferences drawn held that the presumptions available under Sections 118 and 139 if at all drawn, were rebutted by the first respondent. As noticed hereinbefore, even after taking up a case in defence that the cheques in question were compelled to be executed due to threat and coersion the first respondent had not even attempted to establish that case. He has not even adduced any evidence to show that in connection with the alleged incident of threat and coercion to execute the cheques he had lodged a complaint against the appellant, PW1 and the aforesaid Jagadish. The impugned judgment would reveal that the appellate court relied on two circumstances to draw inferences against the appellant. Firstly, the appellate court observed that a huge amount of Rs.3,75,000/- was advanced by the appellant to the first respondent who is not a relative, without any security document and without any stipulation for interest. In this context it is to be noted that while being cross examining PW2, the complainant not even a single question Crl.A.No.49 of 2010 29 regarding his financial incapacity was put to him and no suggestion that the appellant was a stranger to the first respondent was also put. Add to it, it is admitted by the first respondent himself that during the pendency of the case viz., S.T.No.3388/04, through his Advocate an amount of Rs.30,000/- was paid. The appellate court has also considered the question regarding the necessity of issuing three cheques payable on one and the same day and posed a question as to what was the impediment to issue a single cheque for a sum of Rs.3,75,000/- and it was taken as another circumstance that would ensure benefit to the first respondent. As already noted, even the case of the first respondent in his written statement is that he had executed the cheques but, only due to coercion and threat and he did not make any effort to prove the said case with cogent evidence, except by making a written statement. If a person drawing cheques for such an amount was not sure about the chance of honouring of a single cheque carrying that much amount and thinking wisely, issues three cheques of equal amount, covering the total amount payable that action cannot be described as an improbable action. In such eventuality, if amount is available in his account to honour one or two cheques he need to raise only the balance amount and for that he would get the statutory time limit even in case of dishonour the holder of Crl.A.No.49 of 2010 30 the cheque initiates statutory action for dishonour of that cheque. Whatever that be, merely because three cheques were drawn by the first respondent the benefit of presumption of law which was available to the appellant based on the facts established by him could not have been deprived, especially when the trial court had drawn such presumption in his favour. 15. In view of the discussion with reference to the evidence on record and the decisions I am convinced that the Sessions Court had erroneously set aside the judgment of conviction, by proceeding on the premise that the denials/averments in the written statement and Ext.D1 were sufficient to shift the onus of proof on the complainant and also drawing inferences, as discussed above, and further that the appellant - complainant had failed to adduce such evidence to prove his case. The finding of the Sessions Court that the trial Court had appreciated the available evidence from a wrong perspective and thereby entered into an erroneous finding on conviction, is an outcome of an entirely erroneous appreciation of evidence and erroneous deviation as relates application of the statutory provisions. In the circumstances, this appeal is allowed. The judgment of the Court of the Additional Sessions Judge, Thrissur Fast Track Court Crl.A.No.49 of 2010 31 (Adhoc)-II in Crl.Appeal No.721 of 2007 is set aside and the conviction and sentence passed against the first respondent under Section 138 of the N.I. Act by the Judicial First Class Magistrate Court - III, Thrissur is confirmed. Sd/- **C.T.RAVIKUMAR Judge** TKS