Jacob Thomas v. Ali. T. (deceased) and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 ``` ``` CRL.A NO. 2993 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 799/2004 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT), KOTTAYAM DATED 26.09.2008 Crl.L.P. 1822/2008 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/RESPONDENT/COMPLAINANT:`** ``` JACOB THOMAS, ULLATTIL MOUNT FORT APARTMENT, MUTTAMBALAM VILLAGE, KOTTAYAM. ``` ``` BY ADVS.C.V. ALEXANDER ``` ## **`RESPONDENT/(APPELLANT/ACCUSED) & STATE :`** ``` 1ALI.T., (DIED) PROPRIETOR, KOHINOOR ROLLER FLOUR MILLS, CRESCENT HOUSE, CARITAS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 3ADDL.R3 T.K.MYMOONATH BEEVI AGED 70 YEARS, W/O LATE ALI.T, KOHINOOR ROLLER FLOUR MILLS, KUDUMBAVEEDE, MUZHUPPILANGADI, THALASSERI- 670662. 4ADDL.R4 UMMER FAROOKH AGED 51 YEARS,S/O LATE. ALI.T, HOUSE NO.III, NEAR MAR BASELIOUS MAR GREGORIOS ORTHODOX CHURCH, THAZHTHANGADI, KOTTAYAM-686005. 5ADDL.R5 SALEENA AGED 48 YEARS, W/O HASHIM THAYYIL , THAYYIL HOUSE, MUZHUPPILANGADI, THALASSERI-670662 6ADDL.R6 SABEENA AGED 48 YEARS,W/O LIKKAYATH ALI, HOUSE NO.III, NEAR MAR BASELIOUS MAR GREGORIOS ORTHODOX CHURCH, THAZHTHANDAI, KOTTAYAM-686005. ``` Crl.Appeal No.2993 of 2008 -:2:- ``` 7ADDL.R7 REHIYANATH, AGED 45 YEARS W/O K.P.NOUSHAD, HOUSE NO.III, NEAR MAR BASELIOUS MAR GREGORIOS ORTHODOX CHURCH, THAZTHANGADI, KOTTAYAM- 686005. ADDL.RESPONDENTS 3 TO 7 IMPLEADED AS PER ORDER DTD 29-06-2022 IN CRL.MA 1/2022 IN CRL.A.2993/2008. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 09.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Appeal No.2993 of 2008 -:3:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No.2993 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 09[th] day of May, 2023 ## **JUDGMENT** This appeal is preferred against judgment passed by Additional Sessions Judge (Spl.) Kottayam on 26.09.2009 finding the accused not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, N.I Act) and acquitting him. The appeal was heard and the judgment was reserved. In the meantime, on 17.12.2021 the respondent/accused was reported dead and by order passed in Crl.M.A. No.1 of 2022 on 29.06.2022 his legal heirs were brought on record as additional respondents 3 to 7 who are none other than the wife and the children of the accused. 2. The accused is the proprietor of Kohinoor Flour Mills engaged in the business and manufacture of flour. A cheque bearing No.CA/R/0741732 dated 25.02.2003 for a sum of Rs.57,72,465/- was drawn from the account maintained by the Crl.Appeal No.2993 of 2008 -:4:- accused with Nedungadi Bank Ltd, Kottayam Branch which lateron was amalgamated with Punjab National Bank and issued to the complainant towards discharge of the loan arrears due from him. The cheque was presented by the complainant before H.D.F.C Bank, Kottayam but was returned unpaid on 25.02.2003 due to insufficiency of funds in the account maintained by the accused. Intimation regarding dishonour of the cheque was received by the complainant on 26.02.2003. Lawyer notice was sent on 05.03.2003 informing the accused that the cheque issued by him towards discharge of the liability was bounced due to insufficiency of funds in his account and demanding repayment of the amount. Therefore, alleging commission of an offence punishable under Section 138 N.I Act, a complaint was filed under Section 142 N.I. Act to launch the prosecution against the accused. 3. On appearance of the accused before the court on receipt of summons, particulars of the accusations were read over and explained to him. He pleaded not guilty and therefore the trial was scheduled. The complainant tendered oral evidence as PW1 and marked Exts.P1 to P7. On closure of the evidence of the complainant, the accused was questioned under Section 313 (1)(b) Crl.Appeal No.2993 of 2008 -:5:- of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). He denied all questions of incriminating nature put to him and stated that there were several financial transactions with the complainant during 2000 and several cheque leaves have been obtained by the latter from him as security. According to him, prior to presentation of any of those cheques for encashment the complainant used to inform him and several of those were encashed. In 2002, the complainant informed the accused that Rs.2,00,000/- was due from him and the accused replied that a cheque drawn from Nedungadi Bank will be issued to discharge the same. But, as insisted by the complainant, a cheque drawn from an account maintained by him with Malabar Gramin Bank was given and it was encashed on presentation. Thereafter using the cheques and promissory notes given as security at the time of availing the loan, several cases were filed by the complainant. 4. The accused was called upon to enter on his defence in the case on hand. He examined DW1 and DW2 and marked Exts.D1 to D9 in evidence. On appreciation of the entire evidence brought on record from either side and on hearing the rival arguments advanced by them, the trial court found the accused Crl.Appeal No.2993 of 2008 -:6:- guilty of the offence punishable under Section 138 N.I Act, convicted and sentenced him to undergo Simple Imprisonment for one year and to pay a sum of Rs.57,00,000/- as compensation to the complainant under Section 357 (3) Cr.P.C and also to undergo Simple Imprisonment for six months as default sentence. 5. Aggrieved by the judgment, appeal was preferred by the accused before Court of Sessions. The appeal was taken on file and made over to Additional Sessions Judge (Spl), Kottayam for hearing. It was heard by that court elaborately and a judgment was pronounced on 30.01.2008 whereby the finding of guilt, orders of conviction and imposition of sentence were set aside. The case was remanded to the trial court with a direction to send the original cheque to the Forensic Scientific Laboratory alongwith documents containing the handwritings of the accused for the purpose of comparison and to obtain expert opinion on authorship of those. Criminal Revisions were preferred by both sides and as per common order passed by it on 22.07.2008, the judgment of this Court directing remand of the case to the trial court was set aside. The matter was remanded to the appellate court with a direction to dispose the appeal afresh within 2 months from the Crl.Appeal No.2993 of 2008 -:7:- date of receipt of a copy of the order. Thus the appeal was restored to the files of the appellate court. 6. During trial, the complainant was examined as PW1. In the affidavit filed in lieu of examination in chief, he had sworn to the pleadings raised by him in the complaint. During cross examination a specific stand was taken that Rs.39,50,000/- was advanced by him to the accused during the period from 04.05.2000 till 07.01.2001, promising to pay interest at the rate of 36% per annum compounded monthly, after getting fifteen Promissory Notes as security. According to him, interest was paid by the accused correctly and Ext.P1 cheque was issued, seven months after the last payment towards interest. According to him, Ext.P1 cheque was issued on 25.02.2003 towards discharge of both the principal sum and interest due. The cheque presented for collection when dishonoured for insufficiency of funds, a complaint was filed under Section 142 N.I Act to launch the prosecution for an offence under Section 138 N.I Act. 7. While questioning the accused under Section 313(1)(b) Cr.P.C, the accused admitted the financial transactions with the complainant in the year 2000. He also admitted to have obtained Crl.Appeal No.2993 of 2008 -:8:- several cheque leaves and promissory notes from the complainant. Several cheques were presented for encashment, duly informing the complainant in advance and lastly when Rs.2,00,000/- was informed as due in the year 2002 and payment was demanded, a cheque for Rs.2,00,000/- was drawn from the account maintained by him at Malabar Gramin Bank, and given. According to him, the said cheque was encashed and the liability in full was discharged. But, the cheque leaves and pro-notes were not returned by the complainant and false prosecutions were initiated. The case on hand is one such prosecution. 8. During cross examination, DW2 has spoken in tune with the stand taken by him while being examined under Section 313. Admittedly, a loan of Rs.4 crores was availed by him from the Bank and promissory notes and cheque leaves in blank form were also issued to the complainant as security. Title deed was also given, but admitted as returned later. 9. The defence categorically taken was discharge of the entire liability towards the complainant and it was sought to be established on the basis of Exts.D6 to D9 marked in evidence. But, for the corrections made in the entries, the trial court was reluctant to rely on those. Crl.Appeal No.2993 of 2008 -:9:- 10. The Manager of Punjab National Bank was summoned by the accused and examined as DW1. The certified copy of the statement of accounts of Account No. CC 242 maintained by him with Nedungadi Bank was marked in evidence as Ext.D5. DW1 deposed about payment of Rs.5,00,000/- by way of cheque to the complainant, Rs.4,00,000/- by way of cash to the complainant on 20.06.2002 and Rs.6,00,000/- and Rs.8,00,000/-, to Sri.Issac Thomas respectively on 24.05.2000 and 27.06.2002. According to him it is revealed from Ext.D5 that 42 cheques out of 50 bearing Nos.741701 to 741750 given by him to the complainant were encashed during the period from 24.04.2000 till 28.07.2000. 11. Sri.Babu Varghese, the learned counsel urged on behalf of the complainant that the judgment of the appellate court is infirm, improper, illegal and unjust. According to him, the judgment under challenge suffers for appreciation of evidence by the appellate court in the wrong perspective. According to him, the trial court appreciated the evidence in the correct perspective and found that the ingredients of the offence under Section 138 N.I Act are established. According to him without any reasonable grounds the appellate court has taken a view totally different from Crl.Appeal No.2993 of 2008 -:10:- the one arrived at by the trial court. Thus, it was canvassed vehemently that the impugned judgment is liable to be reversed. 12. The accused had taken a stand of total denial of execution of Ext.P1 cheque before the trial court. Signature in Ext.P1 cheque was also denied to have been authored by him. But, during examination, he admitted to have authored the signature in Ext.P1. The presentation of Ext.P1 before the Bank by the complainant, return of the same, bounced from the Bank, issuance of lawyer notice by the complainant demanding the amount from the accused, receipt of the same by the accused and non-payment of the amount to satisfy the demand within the time provided by the Act were also satisfactorily established from the oral as well as the documentary evidence adduced by the complainant. According to him the appellate court on it’s misconception of facts and evidence took a view that the execution of Ext.P1 stands disproved. 13. The dictum laid down by the Apex Court in **C.C. Alavi Haji Vs. Palappetty Muhammed** [(2007) 6 SCC 555] was relied on by the learned counsel to rest his contention that the appellate court has gone wrong while ordering acquittal of the accused. Crl.Appeal No.2993 of 2008 -:11:- According to the learned counsel, the appellate court had reversed the judgment of the trial court and ordered to acquit the accused in total disregard of the dictum of the Apex Court in **State of Madhya Pradesh v. Dharcole** [2004(3)KLT 776 (SC)]. 14. The learned counsel urged further that the appellate court has also gone wrong in construing the presumptions under Section 118 and 139 N.I Act respectively on consideration behind the issuance of a negotiable instrument like cheque and on legally enforceable debt or liability covered by the cheque. According to him for the sole reason that the accused had taken a totally distinct stand from the one taken by the complainant in the complaint, presumption under Section 118 N.I Act cannot be drawn. According to him, admission of execution of the cheque itself is a ground for the presumption under Section 118(a) to attract and the burden is then on the accused to rebut it. It is urged by the learned counsel that in the case on hand the accused totally failed to discharge his burden to rebut the presumption. The learned counsel has also relied on the dictum laid down by the Apex Court in **Bharat Barrek and Drum Manufacturing Co. Vs. Amin Chand [1992 (2) KLT SN p.23]** to contend that the Crl.Appeal No.2993 of 2008 -:12:- appellate Court went wrong in casting the burden of proof of execution of Ext.P1 on the complainant. 15. According to him, Exts.D6 to D9 were marked in evidence and DW2 was also examined by the accused in his venture to rebut the presumption. For the interpolations and corrections found in most of the entries in Exts.D6 to D9 and for denial by DW2, to have made it, the authenticity of those was doubted by the trial court. Those were discarded by the trial court and a finding was arrived at that the accused failed to discharge the onus of rebutting the presumption under Section 118 (a) N.I.Act. 16. The complainant had produced return of his income during financial years 2000-2001 and 2001-2002, profit and loss account for 2000 and 2001 and the Balance Sheet of the concern run by him as on 31.03.2000 and 31.03.2001, but those were omitted to be marked in evidence. Nevertheless, the appellate court placed reliance on those and held that the presumption under Section 118(a) has been rebutted by the accused and accordingly acquitted the accused for offence under Section 138 N.I Act. Crl.Appeal No.2993 of 2008 -:13:- 17. The learned counsel has relied on **Hiten P.Dalal v. Bratindranath Banerjee** [(2001) 6 SCC 16] wherein, the Apex Court has held that both Sections 138 and 139 mandate the court to presume the liability of the drawer of the cheques for the amounts for which the cheques were drawn and issued. 18. The learned counsel has also relied on **Bir Singh Vs. Mukesh Kumar** [(2019) 4 SCC 197] to rest his contention that once signature in Ext.P1 stands admitted by the accused, presumption under Section 139 N.I Act is attracted. Paragraphs 18, 20 and 21 of the judgment being important are extracted hereunder: “18. In passing the impugned judgment and order dated 21-11-2017, the High Court misconstrued Section 139 of the Negotiable Instruments 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. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.” “20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts that onus on the accused. The presumption under Section 139 of the Crl.Appeal No.2993 of 2008 ## -:14:- 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 non-existence of the presumed fact as held in _Hiten.P.Dalal_ . 21. 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 _Rajesh Ranjan Yadav v. CBI_ . However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above.” 19. The argument mainly advanced by Sri.Philip T Varghese, the learned counsel for the accused was on lack of material pleadings in the complaint, which according to him formed the foundation for the prosecution. **Divakaran K.K. v. State of Kerala and Another** [2016 (4) KHC 901] was relied on by him to contend that a complaint is vitiated for non-disclosure of the nature of transaction, the date of the transaction and the date of issuance of the cheque in the notice issued to the accused as well as in the complaint filed to launch the prosecution. Crl.Appeal No.2993 of 2008 -:15:- 20. Paragraphs 18 and 20 of the said judgment is relied on to rest his contention and those are extracted hereunder for convenient reference:- “18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the dishonour of the cheque and demanding payment of the amount covered by it. Neither the nature, nor the date of the transaction between the parties nor the date of issuance of the cheque was disclosed in it. There was only a bald statement that the revision petitioner issued a cheque bearing the date 11/01/1999 for Rs.2,55,000/- in discharge of a debt. There is no explanation why these material facts were not disclosed in the statutory notice. Suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear. They want to develop a story after knowing the defence that may be set up the opposite party. The doors of the Court should be closed to such fortune seekers.” “20. In a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.” 21. This Court finds every reason to differentiate the dictums supra in the factual matrix of the case on hand for the Crl.Appeal No.2993 of 2008 -:16:- reason that, with the available materials in the complaint on hand itself the accused was able to conceive the monetary transaction alleged by the complainant in the complaint. The admission of the accused that Rs.20,00,000/- was borrowed by him from the complainant itself indicate that the accused was well informed about the monetary transaction from the notice issued by the complainant which created the liability covered by Ext.P1. The defence taken by the accused was total discharge of the borrowed sum with interest, retention of the cheques issued as security and misuse of the same to launch the prosecution. 22. The accused did not raise a case of forcible appropriation of cheque or theft of one from him by the complainant. It is well discernible from the evidence tendered by the accused that Ext.P1 was voluntarily issued by him to the complainant. The complainant and the accused only differ on the purpose for which it was issued. According to the accused Ext.P1 was issued to the complainant as security towards the money borrowed by him whereas the specific plea of the complainant was that Ext.P1 was issued, when the amount towards discharge of the outstanding monetary liability was demanded by him. Therefore, Crl.Appeal No.2993 of 2008 -:17:- this Court finds that the dictum of the learned Single Judge in **Divakaran** supra relied on by the learned counsel has no relevance in the context. The dictum in **Divarkaran** supra has also been declared per incurim by a Division Bench of this Court in **Basheer Vs. Usman Koya** [2021 (2) KLT 567]. 23. The ratio in **K.N. Beena v. Muniyappan** [AIR 2001 SCC 2895] is also relevant in the context and is extracted hereunder: “6. In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dis-honoured cheque is on the complainant. It appears that the learned Judge has lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability this presumption is rebuttable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P Dalal v. Bratindranath Banerjee reported in (2001) 6 SCC 16 has also taken an identical view. 7. In this case admittedly the 1[st] Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21[st] May, 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1[st] Respondent had to prove in the trail, by leading cogent evidence, that there was no debt or liability. The 1[st] Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1[st] respondent not having discharged the burden of proving that the cheque was not Crl.Appeal No.2993 of 2008 -:18:- issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction.” 24. The Apex Court has held that a negotiable instrument if admitted as issued, until the contrary is proved, it is to be presumed that it had been drawn for consideration. 25. The ratio in **Bir Singh** supra, being relevant in the case on hand is also extracted: “Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 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” 26. In the backdrop of the dictums supra, this Court has no hesitation to hold that Ext.P1 was issued by the accused voluntarily to the complainant in a transaction involving monetary liability. The accused being fully convinced of the transaction of money has not raised any dispute on it. The only contention taken was that the cheque was issued as security in connection with borrowal of some money and not towards discharge of any outstanding monetary liability. According to him, the entire amount borrowed with interest due was repaid to the complainant and no balance is Crl.Appeal No.2993 of 2008 -:19:- due for repayment. According to him, Ext.P1 given by him as security was not returned after repayment of the money outstanding in full and misused to launch the prosecution on hand. 27. In the context on hand, the presumption under Section 138 N.I. Act would inevitably be attracted and a question liable to be considered then is whether it has been rebutted by the accused successfully or not. 28. Sri.Philip T. Varghese, the learned counsel has invited this court's attention to several judicial pronouncements dealt with by the Apex Court where presumption can be taken to have rebutted. 29. A Division Bench of this Court has held in **M.S. Narayana Menon v. State of Kerala** [2006(3) KLT 404 (SC)] : “32. Applying the said definitions of 'proved or disproved' to principle behind S.118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Crl.Appeal No.2993 of 2008 ## -:20:- Xx xx xx xx - 35. The standard of proof evidently is pre ponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. Xx xx xx xx 39. It was for the Appellant only to discharge initial onus of proof. He was not necessarily required to disprove the prosecution case. Whether in the given facts and circumstances of a case, the initial burden has been discharged by an accused would be a question of fact. It was matter relating to appreciation of evidence. The High Court in its impugned judgment did not point out any error on the part of the appellate court in that behalf. Xx xx xx xx 42. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a ' _fortiori_ ' even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.” [emphasis supplied] ## 30. Paragraphs 20 and 21 of **Krishna Janardhanan Bhat v. Dattatraya Hegde** [2008 (1) KLT 425 (SC)] read : “20. Indisputably, a mandatory presumption is required to be raised in terms of S.118(b) and S.139 of the Act. S.13(1) of the Act defines 'negotiable instrument' to mean a promissory note, bill of exchange or cheque payable either to order or to bearer'. S.138 of the Act has three ingredients, viz: (i) that there is a legally enforceable debt: Crl.Appeal No.2993 of 2008 -:21:- - (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and - (iii) that the cheque so issued had been returned due to insufficiency of funds. 21. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. S.139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under S.139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.” 31. It is followed from the dictums extracted above that for establishing that the presumption is rebutted the accused need only to raise a probable defence and the standard of proof required is only preponderance of probabilities. For establishing that the presumption is rebutted, even the evidence adduced by the complainant could also be relied on by the accused. The accused can either rely on those or adduce independent evidence. He need not disprove the prosecution case as such. 32. When viewed in the backdrop of the above dictums, it is evident that the accused in the case on hand thoroughly failed to discharge its burden of rebutting the presumption under Section Crl.Appeal No.2993 of 2008 -:22:- 139 N.I Act. The stand categorically and consistently taken by the accused during examination under Section 313(1)(b) Cr.P.C, during cross examination of PW1 and while tendering evidence as DW1 was total discharge of the monetary liability due from him and launching of a prosecution falsely by misusing the cheque retained with him. Exts.D6 to D9 marked in evidence by the accused will not help him in bringing preponderance of probabilities in the proven case of the complainant that towards discharge of the same debt with interest outstanding, Ext.P1 was issued. 33. Evidence on record would also satisfactorily establish that Ext.P1 was presented before the bank for encashment and was dishonoured for the reason, 'funds insufficient'. Statutory notice as contemplated under the proviso to Section 138(b) N.I. Act was also issued within the time limit prescribed. Amount demanded was not paid and therefore, the prosecution was filed. In fact, there was no dispute on compliance of statutory formalities. 34. Therefore, there is every justification in the case to hold that the guilt against the accused under Section 138 N.I. Act stands established. The trial court has rightly held so after Crl.Appeal No.2993 of 2008 -:23:- appreciation of the evidence on record in the right perspective. The appellate court undoubtedly has gone wrong in reversing the judgment of the trial court. Therefore, the judgment of the appellate court is liable to be reversed. 35. In the result, appeal is allowed. The judgment of the appellate court under challenge is reversed. The finding of guilt of the accused for the offence under Section 138 N.I.Act by the trial court and order of conviction issued are maintained. Since the accused is no more, the awarding of substantive sentence of imprisonment by the trial court is avoided and sentence is confined to awarding of fine of Rs.57,72,465/- under Section 357 (1) (b) Cr.P.C. The supplemental respondents in the appeal on hand are liable to deposit the fine amount in proportion to the extent, the assets of the deceased respondent/accused are inherited by each of them. The fine amount when deposited shall be disbursed to the complainant as compensation. Sd/- ## **MARY JOSEPH, JUDGE** JJ/NAB/ttb