Padmaja v. Asokan and State of Kerala

Crl. Appeal No 249/2007 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 31[ST] DAY OF MAY 2024 / 10TH JYAISHTA, 1946 CRL.A NO. 249 OF 2007 JUDGMENT DATED 23.05.2006 IN ST. NO. 287 OF 2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE VIII, THIRUVANANTHAPURAM ## APPELLANT/COMPLAINANT: PADMAJA, PARAKOTTUKUNANTHU VEEDU, BHASI NAGAR, ULLOOR, MEDICAL COLLEGE P.O,, THIRUVANANTHAPURAM. BY ADV SRI.R.GOPAN ## RESPONDENT/ACCUSED: - 1 ASOKAN, ASOKA B HAVAN, ARIKADA JUNCTION, PRAVACHAMBALAM P.O,THIRUVANANTHAPURAM. - 2 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. - R1 BY ADV S.RAJEEV R2 BY SRI. VIPIN NARAYAN, SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2024, THE COURT ON 31.05.2024 DELIVERED THE FOLLOWING: Crl. Appeal No 249/2007 : 2 : ## **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 249 of 2007 -------------------------------------------------------Dated this the 31[st] day of May, 2024. ## **JUDGMENT** This appeal is filed against the judgment dated 23.05.2006 in S.T. No. 287 of 2006 of the Judicial First Class Magistrate -VIII, Thiruvananthapuram, challenging the acquittal of the accused under Section 255(1) Cr.P.C finding him not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’). 2. The appellant is the complainant and the complaint was filed on the allegation that the accused borrowed Rs. 70,000/- from the complainant and in discharge of the said debt, he issued cheque dated 12.11.2003 and subsequently, when the complainant presented the cheque for encashment, the same was dishonoured due to insufficiency of funds in the account of the accused and inspite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. Heard Sri. Satheeshkumar S.R, the learned counsel representing the learned counsel for the appellant on record, Smt. Nourin S. Fathima, the learned counsel for the first respondent and Sri. Vipin Narayan for the second respondent State of Kerala. Crl. Appeal No 249/2007 : 3 : 4. In the trial court, PWs 1 and 2 were examined and Exhibits P1 to P5 were marked from the side of the complainant. From the side of the accused, DW1 was examined. 5. After considering the evidence on record, the trial court found that the complainant has not succeeded in proving the execution and issuance of the cheque and that the cheque is supported by valid consideration and hence, the accused was acquitted. 6. The learned counsel for the appellant argued that the signature in the cheque is not disputed and that the trial court has not properly appreciated the evidence of PWs 1 and 2. It is also argued that the trial court ought to have found that the complainant is entitled for the statutory presumptions under Sections 118 and 139 of the NI Act and that the accused has not succeeded in rebutting the statutory presumptions. 7. But, the learned counsel for the accused/first respondent pointed out that the evidence of PWs 1 and 2 would show that the complainant has adduced conflicting evidence regarding the original transaction . It is also pointed out that there is no specific averment in the complaint or in the chief affidavit of PW1 regarding the date of execution and issuance of the cheque and therefore, in the absence of Crl. Appeal No 249/2007 : 4 : _prima facie_ evidence regarding execution and issuance of the cheque, the complainant cannot claim the benefit of the statutory presumptions. 8. It is pertinent to note that there is no averment in the complaint as to when and where the accused executed and issued Exhibit P1 cheque to the complainant. When the complainant was examined as PW1, she filed chief affidavit reiterating the averments in the complaint. In cross examination, PW1 stated that she handed over money to the accused while they were in her house at Ulloor. She further admitted that the averment in the complaint that she handed over the money to the accused at the residence of one C.R. Manojan, Karippankulam is not true. According to PW1, the said Manoj is not known to her and she never had occasion to go to Karipankulam. For convenient reference, the averments in paragraph 1 of the complaint is extracted below: “Accused has borrowed an amount of Rs.70,000/- (Rupees Seventy Thousand only) from the complainant at the residence of C.R. Manoj, Kalipankulam for which he has issued a cheque of the Federal Bank Limited, Nemom Branch, bearing No. 357914 dated 12.11.03 for the above said legally enforcible debt.” 9. In cross examination, PW1 denied the suggestion that the accused never had any transaction with her and that she filed the complaint by obtaining the cheque lost from the possession of the Crl. Appeal No 249/2007 : 5 : accused. The husband of PW1 is examined as PW2 and he deposed that his friend Manoj is residing at Kalipankonam and that the accused borrowed Rs.70,000/- from the complainant, while they were in the house of the said Manoj at Kalipankonam. In cross examination, PW2 would say that he cannot say the house name of his friend Manoj or the T.C. number of the house of Manoj. PW2 also cannot say the father’s name of his friend Manoj. 10. The accused is examined as DW1 and he deposed that he never had any financial transaction with the complainant and he never issued any cheque to the complainant. He also stated that the signature in Exhibit P1 is not his signature. In cross examination DW1 stated that his friend Unni had conducted mosaic work in the house of the complainant and for the reason that Unni has collected Rs.5000/- in excess, he was not permitted to take back his motor from the house of the complainant and without the knowledge of the accused, his friend Unni handed over the cheque to the complainant for releasing the motor and only after the receipt of the statutory notice, the accused came to know these facts from Unni. According to DW1, Unni has taken possession of the cheque from his office table without his knowledge. 11. It is pertinent to note that the averment in the complaint is that the accused borrowed Rs.70,000/- from the complainant while they Crl. Appeal No 249/2007 : 6 : were in the house of C.R. Manoj at Kalipankulam. But, the said averment is categorically denied by PW1 in cross examination. There is no specific averment in the complaint or in the chief affidavit of PW1 as to when and where the accused executed and handed over the cheque to the complainant. The evidence of PW2, the husband of the complainant, regarding the transaction does not tally with the evidence of PW1. Therefore, it can be seen that there is no prima facie evidence regarding the execution and issuance of the cheque. 12. The Honourable Supreme Court in **Basalingappa v. Mudibasappa [(2019) 5 SCC 418]** summarised the principles of law governing presumptions under Sections 118(a) and 139 of the NI Act in the following manner: (i) Once the execution of cheque is admitted S.139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under S.139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be Crl. Appeal No 249/2007 : 7 : drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden. 13. The standard of proof which is required from the accused to rebut the statutory presumption under Section 139 of NI Act is preponderance of probabilities and the accused is not required to prove his case beyond reasonable doubt. 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. 14. As noticed earlier, in this case, the complainant has not adduced _prima facie_ evidence to prove the execution and issuance of Exhibit P1 cheque by the accused to the complainant in discharge of a legally enforceable debt and I find no reason to interfere with the Crl. Appeal No 249/2007 : 8 : findings in the impugned judgment 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. Interlocutory applications, if any pending, shall stand closed. sd/- **JOHNSON JOHN, JUDGE.** Rv