K.P. Sreekumar v. A.R. Parameswara Panicker and State of Kerala (CRL.A. No.679 of 2001)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930** ## **CRL.A.No.679 of 2001(C)** - **----------------------------CRA.208/1999 of ADDL. SESSIONS COURT, ALAPPUZHA** **....................** ## **APPELLANT/RESPONDENT NO.1/COMPLAINANT:** **--------------------------------------------------------** **K.P.SREEKUMAR, S/O KRISHNAPILLAI, AGED 41 YARS, AYYANATTU PADMALAYAM, CHERTHALA EAST MURI, C.M.C. NO.XI, CHERTHALA.** **BY ADV. SRI.C.K.SAJEEV** ## **RESPONDENTS/APPELLANT/ACCUSED:** **---------------------------------------------** ## **1. A.R.PARAMESWARA PANICKER, KONNOTH HOUSE, MARUTHORVATTOM P.O., KOKKOTHAMANGALAM VILLAGE, CHERTHALA.** ## **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR T.J.AMBOOKAN SRI.K.C.GOPIDAS SRI.SHAJI THANKAPPAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.679 of 2001(C)** -2- ## **JUDGMENT** **Counsel for the appellant is absent and there is no representation also for the appellant even when the case was taken up at 1.45 p.m. and 2.15 p.m. today. In the result, I dismiss this Criminal Appeal of the year 2001.** **Sd/K.P.BALACHANDRAN, JUDGE** **07/04/08** ## **V.K.MOHANAN, J** **- - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No.679 of 2001** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 27[th] day of November, 2008.** ## **J U D G M E N T** In this third round of litigation, the complainant is before this court challenging the order of acquittal passed by the Lower Appellate Court. The appellant, herein is the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. In C.C. No. 1108 of 1996, the trial court found that the accused is guilty under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.55,000/- in default he is directed to undergo simple imprisonment for three more months. It is also ordered that if the fine amount is paid a sum of Rs.50,000/- will be given to the complainant as compensation under Section 357(1) of the Code of Criminal Procedure. Aggrieved by the above order of conviction and sentence, the accused preferred Crl.Appeal No. 208 of 1999 before the Court of Additional Sessions Judge, Alappuzha. The Sessions Court as per its judgment dated **Crl. Appeal No.679 of 2001** -2- 19.3.2001, set aside the conviction and allowed the appeal. It is the above order of acquittal challenged in this appeal. The case of the complainant/appellant is that the accused borrowed a sum of Rs. 50,000/- from the complainant during the month of July 1995 and when demanded for the repayment of the said amount the accused issued cheque dated 15.11.1995 for an amount of Rs.50,000/- drawn on the Thirunelloor Service Cooperative Bank Ltd. It is the further case of the complainant that when the cheque in question presented for encashment, the same was dishonored for the reason of insufficient fund. Accordingly, in compliance of the statutory proceedings, he approached the Trial Court and filed the complaint which was taken on file as C.C. No.1108 of 1996 and on the appearance of the accused, the particulars of the allegations were read over and explained to him to which he pleaded not guilty which resulted in the further trial during which PW1 was examined and Exts.P2 to P6 were marked from his side. From the defence side the wife of the complainant was summoned and examined as DW1. The Trial Court after considering entire facts and circumstances of the case found that the accused is guilty under **Crl. Appeal No.679 of 2001** -3- Section 138 of the Act and he was accordingly sentenced. In appeal at the instance of the accused the appellate court found that there is no evidence to show that the accused issued cheque in favour of the complainant and the cheque in question was pertained to the account maintained by the accused. It is the above finding and order of acquittal challenged by the appellant/complainant. 3. I have heard the learned counsel for the appellant as well as the respondents. 4. This court in the decision in **Johnson Scaria v. State of Kerala [2006(4) KLT 290]** has held that admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But under section 114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered. The apex court in the decision in **Krishna Janardhan Bhat v. Dattatraya Hegde [ 2008(1) KLT 425 (SC)** ] has held **Crl. Appeal No.679 of 2001** -4- that “existence of a legally recoverable debt is not a matter of presumption under Section 139 of the Act. It does not raise a presumption in regard to existence of a debt also.” In the very same decision the Apex Court has also held that, “an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. 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. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. Once the accused is found to discharge his initial burden, it shifts to the complainant”. 5. I have already considered the contentions advanced by the learned counsels for both sides, and also perused the records **Crl. Appeal No.679 of 2001** -5- and the evidence. Going by the evidence of the complainant as observed by the Lower Appellate Court there is lack of evidence to prove the transaction. As rightly pointed out by the Lower Appellate Court though the brother-in-law of the complainant was cited and also mentioned his name in the complaint, he was not examined. It is also observed by the lower appellate court regarding the capacity of the complainant to part with such amount. It is the case of the complainant that he paid the amount to the accused by closing his fixed deposit on 26.7.1995 and at the time of the transaction, his brother-in-law was along with him. But no evidence were adduced. However, Ext.P1 cheque is at the hands of the complainant and being the holder of the cheque he can prosecute the drawer of the cheque. But in order to avail presumption under Section 139, mere holding of the cheque is not sufficient in a court of law especially to attract the penal liability. The court has to come into an independent decision on the basis of the inferences and presumption that can be drawn in the particular facts and circumstances with respect to the execution and issue of the cheque after considering evidence available on record and the explanation offered. As **Crl. Appeal No.679 of 2001** -6- pointed out by the learned counsel for the respondents there are certain discrepancies regarding the date of borrowal and the visit of the complainant in the house of the accused. The said discrepancies have to be explained and cleared by the complainant. At this stage because of that discrepancy it cannot be said that there was no transaction especially when the defence failed to give the account as to how and why the complainant got Ext.P1 cheque signed by the accused/respondent. Though the accused has denied the issuance of cheque, absolutely there is no explanation and evidence as to how the cheque in question reached in the hands of the complainant. As observed by this court in the decision Johnson Scaria cited supra, admission of signature in a cheque goes a long way to prove due execution and possession of the same by complainant also goes a long way to prove the issue of the cheque. In the absence of any reasonable and convincing explanation the mere denial of the transaction is not sufficient. 6. The learned counsel for the appellant as well as the respondent submitted that one more opportunity may be given to the parties to substantiate their pleadings with liberty to adduce -7- **Crl. Appeal No.679 of 2001** evidence. In the light of the above facts and circumstances, I am of the view that the said submissions both the parties can adduce further evidence, if any, can be considered favourably and accordingly substantiate to their respective contentions. 7. In the result, the impugned judgment is set aside and the matter is remanded back to the trial court for fresh consideration and the parties are free to adduce further evidence to substantiate their contentions. Accordingly, the appeal is disposed of and the parties are directed to appear before the court below on 2.1.2009. The trial court is directed to take up the complaint on file and to proceed with the same in accordance with the law and dispose of it on merit. ## **V.K.MOHANAN, JUDGE** rhs