MANOJ KUMAR v. STATE OF KERALA & SONY P.ABRAHAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945 CRL.REV.PET NO. 703 OF 2019** **ST 1919/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,** ## **ADIMALy** ## **REVISION PETITIONER/S:** MANOJ KUMAR, AGED 38 YEARS S/O.SASIDHARAN NAIR, VANAJAVILASAM, CHOTTUPARA KARA, PARATHODU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV BABU PAUL ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SONY P.ABRAHAM, S/O.ABRAHAM, PARAMBIL HOUSE, KUNJITHANNI P.O., KANJITHANNY KARA, DEVIKULAM TALUK, PIN-685565. BY ADVS. SUMAN CHAKRAVARTHY MARTINDAS V.JAMES(M-106) AMJATH A.R(K/301/2012) ## **OTHER PRESENT:** PP M.C.ASHI **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD** **ON 06.06.2023, THE COURT ON 09.06.2023 DELIVERED THE FOLLOWING:** Crl.R.P No.703 of 2019 -2- ## **ORDER** Dated this the 09[th] day of June, 2023 The revision petitioner is facing prosecution in S.T.No.1919 of 2015 on the files of the Judicial First Class Magistrate Court, Adimaly. The case originated from the second respondent's complaint, alleging commission of the offence under Section 138 of the N.I.Act by the revision petitioner. According to the second respondent, the revision petitioner borrowed Rs.6,25,000/from him and issued a cheque for the same amount towards discharge of that liability. The cheque, on presentation, was dishonoured for insufficiency of funds and the revision petitioner failed to pay the amount in spite of receiving a lawyer notice demanding the amount. 2. The trial of the case commenced and evidence of the second respondent/complainant was closed on 10.05.2018. After 313 examination, the Crl.R.P No.703 of 2019 -3- case was posted for defence evidence. At that juncture, the revision petitioner filed an application under Section 243 Cr.P.C, seeking to send the cheque for expert opinion. The trial court having rejected that petition, the revision petition is filed. 3. Adv.Babu Paul, learned Counsel appearing for the revision petitioner, contended that the revision petitioner has set up a defence to the effect that he and the second respondent were earlier the partners of a firm. The partnership business failed and dispute arose between the partners. While the partnership was in subsistence, the second respondent clandestinely removed a signed cheque leaf belonging to the revision petitioner. That cheque was later filled up and presented. It is submitted that in the second respondent's chief affidavit, he has categorically stated that the cheque was executed in his presence by the revision petitioner, by Crl.R.P No.703 of 2019 -4- making the entries and putting his signature. It is contended that, the above assertion, if disproved through expert opinion, will bolster the defence case. 4. Adv.Suman Chakravarthy, learned Counsel for the second respondent, contended that the revision petitioner's attempt is to protract the case. Earlier, the revision petitioner had filed a petition under Section 315 Cr.P.C for getting himself examined as a witness. Another petition was filed under Section 311, for reopening the evidence. Those petitions were dismissed on 30.05.2019. The petition for expert opinion was filed thereafter. It is contended that even if expert opinion is to the effect that the entries in the cheque were made by some person other than the revision petitioner, that will not aid in rebutting the presumption under Section 139. In support of this contention, reliance is placed on the decision in _**Oriental Bank of Commerce v.**_ Crl.R.P No.703 of 2019 -5- ## _**Prabodh Kumar Tewari [2022 (5) KHC 560]**_ , wherein it is held that, once handing over of a signed blank cheque is admitted, evidence of the handwriting expert on whether the complainant had filled in the details of the cheque becomes immaterial. 5. It is by now well settled that Section 139 postulates a reverse onus clause. The onus can be discharged by letting in evidence or based on preponderance of probabilities. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. The manner in which the presumption can be rebutted is discussed in ## _**Rangappa v. Sri Mohan [(2010) 11 SCC 441].**_ The relevant portion of that decision reads as under; _'Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in_ Crl.R.P No.703 of 2019 -6- _order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.'_ 6. In the case at hand, the attempt of the revision petitioner is to make out a probable case, by disproving the complainant's version that the accused had filled up and signed the cheque in his presence. In view of the assertive statement of PW1 that the cheque was filled up, signed and handed over by the revision petitioner, expert opinion on whether the entries are in the handwriting of the revision petitioner or not will definitely aid the attempt to make out a probable case. 7. Having come to the above conclusion, it has to be considered whether the findings in _**Prabodh Kumar Tewari** (supra)_ has the effect of completely taking away the accused's right to seek expert opinion, even in cases where the complainant asserts that the cheque was filled up and signed by the accused in his presence. In Crl.R.P No.703 of 2019 -7- this regard, it is pertinent to note that in _**Prabodh Kumar Tewari** (supra),_ the cheque was issued for and on behalf of a Private Limited Company and the accused had sought expert opinion for proving that the cheque was not handed over for the purpose stated in the complaint. It was in the above factual background that the Apex Court hold the opinion of the handwriting expert on whether the accused had filled the details in the cheque to be immaterial in determining the purpose for which the cheque was issued. Pertinently, the Apex Court also held that a drawer, who signs the cheque and hands it over to the payee, is presumed to be liable unless he adduces evidence to rebut the presumption. 8. As held in _**Nagappa T v. Y.R.Muralidhar**_ _**[(2008) 5 SCC 633],**_ even in a case where a presumption can be raised under Section 118(a) or 139 of the Act, opportunity must be granted to the accused to adduce evidence in rebuttal. By Crl.R.P No.703 of 2019 -8- dismissing the petition under Section 243, the court below has denied that opportunity. The finding of the trial court that the opinion of the expert is only an opinion and the court is empowered to make a comparison on its own, as provided under Section 73 of the Evidence Act, does not justify denial of opportunity to rebut the presumption under Section 139 of the N.I.Act. For the aforementioned reasons, the criminal revision petition is allowed and the impugned order, set aside. The learned Magistrate shall take immediate steps for sending the cheque, along with the admitted writings of the revision petitioner, for expert opinion. Further proceedings in the case shall be continued after receipt of the opinion. Sd/- ## **V.G.ARUN JUDGE** Scl/