P.C. Cherian v. Thampi Kunju Mangaram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19[TH] DAY OF MAY 2023 / 29TH VAISAKHA, 1945** **CRL.REV.PET NO. 570 OF 2003** **CRA 145/1997 OF ADDITIONAL SESSIONS COURT, PATHANAMTHITTA CC 422/1995 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-II,PATHANAMTHITTA** ## **REVISION PETITIONER/S:** P.C.CHERIAN S/O.CHERIAN VARGHESE, AKKARAKALAYIL,, ARUVAPPULAM, KALLELI, KONNI. BY ADVS. JACOB P. ALEX JOSEPH P.ALEX(K/1-C/2002) MANU SANKAR P.(K/000823/2018) AMAL AMIR ALI(K/000773/2019) ## **RESPONDENT/S:** 1 THAMPI KUNJUN MANGARAM, KONNI. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 3 KHADEEJA BEEVI W/O. LATE K.P. THAMPI KUNJU, KALATHOORETH, MANGARAM, KONNI. (IMPLEADED AS PER ORDER DATED 07.03.2023 IN CRL.M.A.7500/06) 4 LAILA BEEVI W/O. LATE K.P. THAMPI KUNJU, KALATHOORETH, MANGARAM, KONNI (IMPLEADED AS PER ORDER DATED 07.03.23 I)N CRL.M.A. 7500/06) BY ADV SRI.P.GOPALAKRISHNAN NAIR ## **OTHER PRESENT:** SRI. RENJITH GEORGE, SR.PP. THIS CRIMINAL REVISION PETITION HAVING BEEN FILED ON 11.04.2023, THE COURT ON 19.05.2023 DELIVERED THE FOLLOWING: Crl.R.P.No.570 of 2003 -2- ## **ORDER** Dated this the 19[th] day of May, 2023 The revision petitioner is the accused in C.C.No.422 of 1995 filed before the Judicial First Class Magistrate Court-II, Pathanamthitta. The case originated from a complaint filed by the first respondent, alleging that the petitioner had borrowed an amount Rs.1,50,000/- on 25.03.1994 and had issued a cheque dated 27.03.1995 towards discharge of that liability. The cheque, on presentation, was dishonoured for insufficiency of funds and the petitioner failed to repay the cheque amount, despite being issued with a notice demanding payment. **==> picture [381 x 13] intentionally omitted <==** complainant was examined as PW1, the bank manager as PW2 and Exts.P1 to P7 documents marked. The petitioner denied the incriminating circumstances put to him during Section 313 questioning and examined DWs 1 to 3 as defence witnesses. The Crl.R.P.No.570 of 2003 -3- trial court, on appreciation of evidence and legal contentions, found the petitioner guilty and thereupon, convicted and sentenced him to undergo simple imprisonment for six months. The appeal preferred by the petitioner was dismissed, finding no reason to interfere. Hence, this revision petition. 3. The first respondent/complainant expired on 16.06.2006. Thereupon, the revision petitioner sought impleadment of the legal heirs as additional respondents 3 and 4. Even though notice was served on the proposed additional respondents, they have not entered appearance. The impleading petition was hence allowed and the revision petition proceeded with. 4. Learned Counsel for the petitioner contended that the specific case urged in the complaint is that the revision petitioner had borrowed an amount of Rs.1,50,000/- on 25.03.1994 and had issued Ext.P1 cheque on 27.03.1995. In ## Crl.R.P.No.570 of 2003 -4- his cross-examination, the complainant stated that he had given Rs.25,000/- to the accused on 20.06.1994 and Rs.1,25,000/- on 27.03.1995 and that, Ext.P1 cheque was issued on 27.03.1995. This patent contradiction, which cut at the root of the complainant's case was omitted to be noticed by the courts below. According to the learned Counsel, the above contradiction is sufficient to rebut the presumption under Section 139 of the Negotiable Instruments Act. In support of this contention, reliance is placed on the decision in _**Basalingappa v. Mudibasappa [(2019) 5**_ _**SCC 418]**_ . It is pointed out that the revision petitioner is a person with 40% disability and non-appearance of the additional respondents is proof of their lack of interest. 5. As rightly pointed out by the learned Counsel, the specific averment in the complaint is that the accused borrowed a sum of Rs.1,50,000/- from the complainant for his Crl.R.P.No.570 of 2003 -5- business purpose on 25.03.1994 at Konni. In his chief-examination, the complainant stated that the amount of Rs.1,50,000 was handed over to the accused from his shop on 26.03.1994. He further stated that Ext.P1 cheque was issued by the accused on 27.03.1995 after repeated request. Surprisingly, in his cross-examination, the complainant came out with a different story. He stated that only Rs.25,000/- was given to the accused on 26.03.1994 and the balance amount of Rs.1,25,000 was given on 27.03.1995. He also stated that the cheque was issued by the accused on 27.03.1995. The petitioner's case is that he had not borrowed the amount as alleged and the cheque was clandestinely obtained by the complainant with the aid of one of his employees. 6. The patent contradiction in the evidence of the complainant regarding the manner in which the amount was paid, probablises the defence case. In _**Basalingappa** (supra)_ , the Apex Court, Crl.R.P.No.570 of 2003 -6- after scrutiny of various precedents, summarised the principles regarding rebuttal of the presumption under Sections 118(a) and 139, as under; _"...25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:_ _25.1. Once the execution of cheque is admitted Section 139 of theAct mandates a presumption that the cheque was for the discharge of any debt or other liability._ _25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities._ _25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the 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 drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely._ Crl.R.P.No.570 of 2003 -7- _25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.”_ In _**Basalingappa** (supra)_ , the Supreme Court took note of the contradiction between the statement in the complaint, the examination in chief, and the cross-examination, regarding the date on which the cheque was issued. In the instant case also, the material contradiction can be relied on by the revision petitioner to rebut the presumption under Section 139. Further, the answer elicited during cross-examination shows that, after advancing an amount of Rs.25,000/- on 25.03.1994, the complainant had advanced a further amount of Rs.1,25,000/- on 27.03.1995, ie; after more than a year. It is impossible to believe that a money lender like the complainant, who claims interest at the rate of Rs.2/-, would advance a huge amount to a person who had failed to repay the initial amount he had borrowed. Crl.R.P.No.570 of 2003 -8- Hence, I find the petitioner to have succeeded in rebutting the presumption under Section 139. The trial court committed another illegality by sentencing the petitioner to simple imprisonment for six months, without a direction to pay the cheque amount, either by way of fine or compensation. For the aforementioned reasons, the criminal revision petition is allowed, the judgments of the trial and appellate courts set aside and the revision petitioner acquitted. The bail bond executed by the revision petitioner and the sureties will stand discharged. Sd/- ## **V.G.ARUN JUDGE** Scl/