P. Shaji v. Anil Kumar alias Ani and Anikuttan s/o Rajan; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943** ## **CRL.A NO. 830 OF 2006** **AGAINST THE JUDGMENT DATED 31.10.2005 IN CC 584/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,** **CHERTHALA** ## **APPELLANT/COMPLAINANT:** P.SHAJI, S/O. PALANI, PARAVELI VELI, MAYITHARA MARKET P.O.,, CHARAMANGALAM, CHERTHALA. BY ADV SRI.SHAJI THANKAPPAN ## **RESPONDENTS/ACCUSED:** 1 ANIL KUMAR @ ANI AND ANIKUTTAN S/O.RAJAN, RESHMA NIVAS FROM VALYARAYIL,, MAYITHARA MARKET P.O., CHERTHALA. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. C.K.SAJEEV PUBLIC PROSECUTOR SRI SANAL P RAJ, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.830/2006 ## -:2:- ## J U D G M E N T Dated this the 7th day of December, 2021 This appeal is filed against the acquittal under Section 378(4) of the Cr.P.C. in C.C.No.584/2001 on the files of the Judicial First Class Magistrate Court-II, Cherthala. 2. The parties are referred to in this judgment as they were referred to in the impugned judgment, i.e., the complainant and the accused. 3. A complaint was filed to prosecute the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'). It was alleged that the accused borrowed a sum of Rs.1,00,000/- form the complainant on 22.7.200 and issued Ext.P1 cheque on 23.8.2000 towards the discharge of the said liability, that the cheque on presentation was dishonoured for want of sufficient funds, that Ext.P4 statutory notice demanding payment was not heeded to, and, therefore, the accused committed offence under Section 138 of the NI Act. Crl.A.No.830/2006 -:3:- 4. The complainant himself gave evidence as PW1. A witness was examined as PW2. Exts. P1 to P9 were marked on the side of the complainant. The accused himself gave evidence as DW3. Two independent witnesses were examined as DW1 and DW2 and Exts.D1 and D2 were marked on his side. 5. The Court below on appreciation of evidence found that complainant failed to prove that the accused borrowed a sum of Rs.1,00,000/- and towards the discharge of the said debt Ext.P1 cheque was issued to him. Accordingly, the accused was acquitted u/s 255(1) of the Cr.P.C. as per the impugned judgment. Challenging the said judgment, the complainant preferred this appeal. 6. I have heard Sri. Shaji Thankappan, the learned counsel for the appellant and Sri. C.K. Sajeev, the learned counsel for the 1[st] respondent. 7. The learned counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext.P1 cheque by examining PW1 and PW2 and, hence, the presumption under Section 138(9) of the NI Act would come into Crl.A.No.830/2006 -:4:- play and the accused failed to rebut the said presumption. The counsel further submitted that an opportunity may be given to the complainant to send the entries in Exts. D1 and D2 for expert opinion. 8. The learned counsel for the 1[st] respondent, on the other hand, submitted that the complainant has absolutely failed to prove the transaction as well as issuance of cheque and if at all presumption is available to the complainant, the accused had rebutted the presumption by adducing oral as well as documentary evidence. 9. The Negotiable Instruments Act raises two presumptions, firstly in regard to the passing of consideration as contained in Section 118 therein and secondly, the presumption that the holder of the cheque receiving the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential Crl.A.No.830/2006 -:5:- burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. Of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. 10. The definite case of the defence is that the complainant is a money lender and he borrowed a total sum of Rs.10,000/- from the accused on three different occasions and a singed blank cheque was issued as security towards the said transaction and it was misused and a false complaint was filed. In order to prove the said defence version, the accused himself gave evidence as DW3 and two independent witnesses were examined as DW1 and DW2. He has also produced Exts. D1 and D2. The accused deposed that the amount borrowed from him by the complainant used to be repaid by him in daily instalments and the complainant used to record the said repayment in his own hand writing in Exts. D1 and D2 pass books. DW1 and DW2 also gave evidence in tune with the defence version. They Crl.A.No.830/2006 -:6:- further deposed that they saw the accused issuing Ext.P1 cheque in blank as contended by the accused. When examined, the complainant denied the said case set up by the defence. When Exts.D1 and D2 were confronted, the complainant denied it. He specifically denied his hand writing in Exts.D1 and D2. He deposed that he has no connection whatsoever with Exts.D1 and D2. 11. In that circumstance, the accused filed C.M.P.No.691/2005 to send the entries in Exts.D1 and D2 for comparison by the hand writing expert with the admitted signature of the complainant. The said petition was allowed and the complainant was directed to produce his admitted hand writing. But, the complainant failed to produce the admitted hand writing at the court below. Since there was no compliance of the order passed by the court below in C.M.P No.691/2005, the court below closed further proceedings in the said petition holding that adverse inference could be drawn at the time of hearing. Even though the accused challenged the order in C.M.P No.691/2005 before this Court in Crl.M.C.No.2813/2005, he could not succeed Crl.A.No.830/2006 -:7:- in it. This Court passed an order dated 6.9.2005 directing the learned Magistrate to send the documents in question for opinion of the expert. By that time, C.M.P.No.691/2005 was already closed. That apart, even after the order of this Court, the complainant did not produce his admitted hand writing at the court. Therefore, the complainant now cannot contend that he should be given an opportunity to send Exts.D1 and D2 to scientific expert. 12. The court below on appreciation of evidence found that the defence version appears to be probable. On reappreciation of evidence, I find no reason to take a different view than that of the court below. The evidence of independent witnesses, DW1 and DW2, would substantiate the defence case set up by the accused. Even in the absence of the expert opinion, the accused had succeeded in proving that the cheque in question was issued in blank in connection with the earlier transaction he had with the complainant. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused Crl.A.No.830/2006 ## -:8:- need to substantiate his case based on preponderance of probabilities. The accused in this case is successful in discharging the burden by cross examining PW1 and examining DW1 to DW3 and also producing Exts.D1 and D2 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable. 13. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The Apex Court in _**K.Prakashan v. P.K.Surenderan**_ [(2008) 1 SCC 258] has held that if two views are possible, the Crl.A.No.830/2006 ## -:9:- appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. For the reasons stated above, I find no reason to interfere with the order of acquittal by the court below vide the impugned judgment. The appeal fails and it is only to be dismissed. In the result, the appeal is dismissed. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge