## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ASHOK MENON**
**THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941**
## **CRL.A.No.1268 of 2006**
**AGAINST THE ORDER/JUDGMENT IN CRA 330/2004 of ADDITIONAL SESSIONS COURT (ADHOC-III), KASARAGODE DATED 26-10-2005**
**AGAINST ORDER/JUDGMENT IN CC NO.506/2000 OF COURT OF THE CHIEF JUDICIAL MAGISTRATE, KASARAGOD DATED 13.8.2004**
## **APPELLANT/RESPONDENT/COMPLAINANT:**
**K.ACHUTHA S/O LATE KANNAN, VASANTHI NIVAS, NEAR NITHYANANDA MUTT, KUMBLA, KASARAGODE.**
**BY ADVS. SRI.P.K.MUHAMMED SRI. IYPE JOSEPH SRI.K.M.GEORGE**
## **RESPONDENTS/APPELLANTS/ACCUSED & STATE:**
**1 S.K.SHAREEF S/O LATE ABOOBACKER, NOORMAHAL, KOIPADY VILLAGE, KUMBALA, KASARGODE TALUK. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY ADV. SRI.T.G.RAJENDRAN FOR R1**
## **OTHER PRESENT:**
## **SMT.MAYA M N, PUBLIC PROSECUTOR**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2019, THE COURT ON 01.08.2019 PASSED THE FOLLOWING:**
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## **J U D G M E N T**
## **[Crl.A 1268 of 2006]**
The complainant in CC No.506/2000 on the file of the Chief Judicial Magistrate's Court, Kasaragod is the appellant herein.
2. The complaint was filed alleging offence
punishable under Section 420 of the Indian Penal Code
as also under Section 138 of the Negotiable Instruments Act. It is alleged that the accused
borrowed money from the complainant and in discharge
of that liability, he issued Ext.P1 cheque dated
18.7.2000 for Rs.2,40,000/- in favour of the
complainant. On being presented, the cheque was dishonoured vide Ext.P2 dishonour memo dated
19.7.2000 for the reason that the account maintained
by the accused in the Bank has been closed. Ext.P3
is the extract of the ledger which would indicate
that the account maintained by the accused was closed
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by him as early as in the year 1999. Ext.P4 statutory notice was issued to the accused demanding payment of the cheque amount and the same was accepted by the accused as evidenced by Ext.P5 acknowledgment card. He also caused Ext.P6 reply notice to be sent denying the liability. The accused contended that Ext.P1 is the blank signed cheque handed over as security to the complainant on an earlier loan, which was already discharged. The blank cheque was never returned and it has been used by the complainant after filling it up with an amount not due from the accused. The accused did not pay the amount demanded, and hence, the complaint.
3. Cognizance was originally taken under Section 420 IPC against the accused to which he pleaded not guilty. After examination of the complainant as PW1 and marking the documents as Exts.P1 to P6, the accused was questioned under Section 313 of the Code of Criminal Procedure, and thereafter directed him to enter upon his defence.
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The accused got himself examined as DW1. DW2 is the handwriting expert to whom, the disputed cheque was sent for comparison of the handwriting on it with the admitted handwriting of the complainant. The expert opined in favour of the accused to the effect that the specimen handwriting of the complainant matched with the disputed handwriting on Ext.P1 cheque. Thereafter, the charge was altered and offence under section 138 of the NI Act was also added and the accused pleaded not guilty to that too.
4. On appreciation of the evidence, the learned Chief Judicial Magistrate found that evidence was not sufficient to attract offence under Section 420 IPC. But, concluded that the complainant has been succeeded in establishing an offence punishable under Section 138 of the NI Act on the basis of which the accused was sentenced to undergo simple imprisonment for six months and to pay Rs.2,40,000/as compensation to the complainant with a default sentence of three months simple imprisonment.
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5. Aggrieved by the conviction and sentence, the accused preferred an appeal before the Addl. Sessions Court (Adhoc) - III, Kasaragod and vide judgment dated 26.10.2005, the appeal was allowed and the conviction and sentence awarded by the CJM was set aside and the accused acquitted. It is this
acquittal of the accused which is impugned.
6. The appellant/complainant contends that
despite sufficient evidence to indicate that the cheque has been dishonoured and there being no satisfactory rebuttal evidence by the accused, the first appellate court acquitted the accused. The
acquittal has to be set aside and the conviction by the trial court restored.
7. The learned counsel appearing for the
respondent/accused would submit that the trial court has failed to appreciate the evidence adduced by the accused and that in spite of there being no evidence to substantiate the case of the complainant regarding the borrowing and there being positive evidence of
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the cheque being concocted by the complainant, the trial court erroneously found that the defence set up by the accused is not sustainable and brushed it aside. The error in the trial court judgment has been set right by its reversal. There are no grounds to
upset the impugned Judgment.
8. There is no doubt that the initial
burden about the cheque being issued in discharge of a legally enforceable debt is on the complainant. The
accused admits his signature on Ext.P1 cheque. He
also admits having borrowed some amount from the complainant. But that admitted transaction took
place in the year 1998, and not in the year 2000 as
alleged. The contention is that though he had
discharged the amount due to the complainant the
blank signed cheque which was handed over to the
complainant as security at the time of incurring the
loan was not returned. This defence of the accused was taken up as early as in the reply notice marked as Ext.P6.
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9. It is also interesting to note that the complainant has not pleaded or testified anything about when the actual lending of money to the accused took place. There is no evidence regarding the lending of the money to the accused. The cheque was allegedly issued on 18.7.2000 and presented for collection on the very next day. The Bank account was closed as early as on 8.11.1999. In case the cheque was issued by the accused in discharge of a legally enforceable debt he had incurred in the year 2000 and issued a cheque on 18.7.2000, for discharge of that debt, more than eight months after closing the account, essentially, there was dishonest intention on his part because he knew that the cheque was being drawn on an account which was not existed in the year 2000. But for that, there must be
evidence regarding the dishonest intention of the accused at the time of borrowing the amount. That fact will have to be proved by the complainant. I am afraid, that there is little evidence regarding the
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alleged borrowing in the year 2000. It is also pertinent to note that Ext.P1 cheque bearing
No.459693 could not have been issued during the year 2000 because the cheque bearing the number 459694 which is subsequent to Ext.P1 cheque was presented and encashed on 20.7.1998. Another cheque bearing No.459695 is seen encashed on 12.12.1998 as is evident from Ext.P3 ledger extract. Hence, the
possibility of the accused issuing a cheque prior to the one which was encashed on 20.7.1998 in the year
2000 is not probable. The learned CJM did not consider this seriously. But the appellate court has
considered this fact as a probability in favour of the accused.
10. In _**Vijay** v._ _**Laxman and Another [(2013) 3**_
_**SCC 86]**_ , the Honourable Supreme Court has held that the accused by offering a plausible explanation in the face of unusual facts pleaded by the appellant was able to displace the presumption against him and thus the acquittal was confirmed. It is also held
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that the standard of proof required for rebutting the presumption under Sections 118 and 139 of the NI Act is not as high as that required for the prosecution and is rebuttable on preponderance of probabilities.
11. Taking into consideration the fact that the complainant has not pleaded or proved the alleged borrowing by the accused and the circumstances leading to the conclusion that the cheques bearing numbers subsequent to Ext.P1 cheque were encashed during 1998 are circumstances sufficient to rebut the presumption under Sections 118 and 139 of the NI Act in favour of the accused. I find no reason to interfere with the acquittal of the accused vide the impugned judgment of the learned Sessions Judge.
The appeal is therefore dismissed. No costs.
## **Sd/-**
## **ASHOK MENON**
## **JUDGE**
jg
