M. Rajagopal v. N.U. Vasanthy and State of Kerala

Crl. Appeal No.1902/2007 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ## CRL.A NO. 1902 OF 2007 JUDGMENT DATED 24.07.2007 IN CC NO.1015 OF 2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR ## APPELLANT/COMPLAINANT: M. RAJAGOPAL, S/O. PADMAVATHY AMMAA, AMBADY,COLLEGE ROAD,THRISSUR. BY ADV SRI.P.V.CHANDRA MOHAN ## RESPONDENT/ACCUSED: 1 N.U. VASANTHY, W/O. LATE MANOHARAN, CHAKKAMADATHIL HOUSE, NEAR CHINA BAZAR, P.O.VALAPAYA,, THRISSUR. 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.P.VIJAYA BHANU (SR.) PUBLIC PROSECUTOR SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2024, THE COURT ON 08.04.2024 DELIVERED THE FOLLOWING: Crl. Appeal No.1902/2007 : 2 : ## **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 1902 of 2007 -------------------------------------------------------Dated this the 8[th] day of April, 2024. ## **JUDGMENT** This appeal is filed against the judgment dated 24.07.2007 in C.C. No. 1015 of 2005 of the Judicial First Class Magistrate I, Thrissur, whereby the accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and acquitted under Section 255(1) Cr.P.C 2. The appellant is the complainant and the complaint was filed on the allegation that towards the amounts owed to the complainant, the accused issued cheque dated 26.05.2004 for a sum of Rs.3,00,000/- and subsequently, the cheque was dishonoured for insufficiency of funds and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, the complainant was examined as PW1 and Exhibits P1 to P6 were marked. From the side of the accused, DW1 was examined and Exhibit D1 marked. After considering the evidence on record and hearing both sides, the trial court found that the evidence of DW1 and Exhibit D1 would show that it was the husband Crl. Appeal No.1902/2007 : 3 : of the accused who borrowed money from the complainant and that there was no transaction between the complainant and the accused and that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant. 4. Heard Sri. P.V. Chandramohan, the learned counsel for the appellant, Smt. Sruthy K.K., learned counsel for the first respondent and Sri. Sanal P. Raj, the learned Senior Public Prosecutor. 5. The learned counsel for the appellant argued that the execution of the cheque and the signature is not disputed and that the trial court ought to have found that Exhibit D1 said to be a suicide note of the husband of the accused, is not admissible in evidence, in as much as the cause of death of the husband of the accused does not come into question in this case. But, the learned counsel for the accused/first respondent argued that in Exhibit P6 reply notice itself, the accused has specifically taken the contention that she has no acquaintance or transaction with the complainant and she never borrowed any amount from the complainant or issued any cheque. It is further stated in the reply notice that her husband was a bus operator and when he faced financial problems, he availed a loan from the complainant through one Ayyappan after entrusting blank cheque and stamp papers as security. It is stated that the blank Crl. Appeal No.1902/2007 : 4 : cheque of the accused was also given to the complainant and that the husband of the accused has committed suicide after executing Exhibit D1, suicide note, disclosing the details of his debt and debtors. 6. The learned counsel for the accused/first respondent pointed out that the complainant has not disclosed the nature of the transaction with the accused in the complaint and the statutory notice, and the date of handing over of the cheque by the accused to the complainant is also not disclosed in the complaint or the statutory notice and in that circumstance, the evidence of DW1 regarding the transaction between her husband and the complainant is admissible in view of Section 11 of the Indian Evidence Act, 1872, which provides that facts not otherwise relevant are relevant, if they are inconsistent with any fact in issue or relevant fact or if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. ## 7. In **Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal** **[(1999) 3 SCC 35],** the Honourable Supreme Court held that the non existence of consideration for the cheque can be proved by raising a probable defence and if it is shown that the existence of consideration Crl. Appeal No.1902/2007 : 5 : was improbable or doubtful or the same was illegal, the onus would shift to the complainant. ## 8. In **Harbhajan Singh v. State of Punjab (AIR 1966 SC 97),** the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities 9. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in **M.S.Narayana Menon v. State of Kerala (2006 (6) SCC 39),** and it was held that if some material is brought on record consistent with the innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. 10. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence. Crl. Appeal No.1902/2007 : 6 : 11. It is true that under Section 32(1) of the Indian Evidence Act, a dying declaration is admissible only when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes in to question. Therefore, a dying declaration will be admissible in evidence only when the person making the statement dies and the cause of the person’s death comes into question. I find force in the argument of the learned counsel for the appellant that the cause of death of the husband of the accused is not a question to be decided in this case and therefore, Exhibit D1, suicide note, will not come within the purview of Section 32(1) of the Indian Evidence Act. 12. A perusal of the complaint and the evidence of PW1 in chief examination clearly shows that the complainant has not disclosed the nature of the transaction and the date on which the accused handed over the cheque to the complainant. It is pertinent to note that in cross examination, PW1 admitted that the husband of the accused, Manoharan, was the owner of a bus and that he is known to him. In another part of cross examination PW1 stated that when he advanced the money, the husband of the accused was also present. The Crl. Appeal No.1902/2007 : 7 : evidence of PW1 in cross examination shows that the native place of the accused is not known to PW1. 13. The accused, when examined as DW1, categorically deposed that she has not borrowed any amount from the complainant and that she has no previous acquaintance with the complainant and she never issued any cheque to the complainant as alleged. DW1 categorically deposed before the court that it was her husband Manoharan who borrowed money from the complainant through one Ayyappan and for that purpose, her husband used her signed cheque leaves. The evidence of DW1 shows that her husband committed suicide after leaving Exhibit D1 suicide note. Even though, DW1 was seriously cross examined, nothing was brought out to discredit her evidence in chief examination that she has no prior acquaintance with the complainant herein and she never borrowed any amount from the complainant and that it was her husband who borrowed money from the complainant by using her signed cheque leaves. 14. Therefore, in the absence of any satisfactory evidence to show that Exhibit P1 cheque was issued for discharging a legally enforceable debt from the side of the accused to the complainant, I find no reason to interfere with the finding of the trial court that the accused has succeeded in rebutting the statutory presumptions in Crl. Appeal No.1902/2007 : 8 : favour of the complainant and in that circumstance, I find that this appeal, which is devoid of merit, is liable to be dismissed. In the result, this appeal is dismissed. sd/- **JOHNSON JOHN, JUDGE.** Rv