P.C. Mathew v. Kunjamma K.V. and State of Kerala

Crl. Appeal No. 1074/2008 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 CRL.A NO. 1074 OF 2008 JUDGMENT DATED 30.11.2007 IN ST NO.220 OF 2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHENGANACHERRY ## APPELLANT/COMPLAINANT: P.C.MATHEW, MULLAMKUZHY HOUSE, MAMMOODU P.O., CHANGANACHERRY. BY ADV JOHN VARGHESE ## RESPONDENT/ACCUSED & STATE: - 1 KUNJAMMA K.V., MADATHANIKUNNEL HOUSE, PALAMATTOM KARA,, KARUMPANADOM P.O., CHANGANCHERRY. - 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OR KERALA, ERNAKULAM. BY ADVS. PUBLIC PROSECUTOR M.P.MADHAVANKUTTY SRI. SANAL. P. RAJ , PUBLIC PROSECUTOR R1 BY SRI. ANANTHAKRISHNAN A KARTHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2024, THE COURT ON 28.05.2024 DELIVERED THE FOLLOWING: Crl. Appeal No. 1074/2008 : 2 : ## **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 1074 of 2008 -------------------------------------------------------Dated this the 28[th] day of May, 2024. ## **JUDGMENT** This appeal is filed against the judgment dated 30.11.2007 in S.T. No. 220 of 2007 of the Judicial First Class Magistrate-II, Changanacherry, whereby the accused was found not guilty of the offence 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 the accused borrowed Rs.75,000/- from the complainant and for the discharge of the said debt, he issued cheque dated 28.12.2003 and subsequently, when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. Heard Smt. Ayisha T.S., the learned counsel representing Sri. John Varghese, the learned counsel for the appellant on record, Sri. Ananthakrishnan A. Kartha, the learned counsel for the Crl. Appeal No. 1074/2008 : 3 : first respondent and Sri. Sanal P. Raj, the learned Public Prosecutor appearing for the second respondent, State of Kerala. 4. In the trial court, the complainant was examined as PW1 and Exhibits P1 to P6 were marked and no evidence was adduced from the side of the accused. 5. After considering the evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in establishing that the cheque was drawn by the accused from an account maintained by her or that, Exhibit P1 cheque was executed and issued by the accused to the complainant and it was also found that the complaint was not filed within the statutory period. 6. The learned counsel for the appellant argued that the signature in the cheque is not disputed and that the accused has not issued any reply notice and the trial court has not properly appreciated the evidence of PW1 and that the trial court ought to have found that the complainant has proved the execution and issuance of the cheque. 7. But, the learned counsel for the accused/first respondent pointed out that Exhibit P4 lawyer notice is dated 10.02.2004 and Crl. Appeal No. 1074/2008 : 4 : that Exhibit P6, postal acknowledgment card, would show that the notice was served to the accused on 16.02.2004 and the complaint was filed only on 15.04.2004. Admittedly, there was no application to condone the delay. As per Section 142(1)(b) of the NI Act, the complaint is to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the NI Act and therefore, there is no reason to disagree with the finding of the trial court in this regard. 8. The learned counsel for the accused/first respondent pointed out that the complainant has not disclosed the date on which he advanced money to the accused, in the complaint or the statutory notice. In cross examination, PW1 stated that he paid the money to the accused during November, 2003 and subsequently, the accused entrusted Exhibit P1 cheque to his wife on 28.12.2003. PW1 categorically admitted in cross examination that he was not present in the house when the accused handed over the cheque to his wife. PW1 also admitted in cross examination that the cheque was not signed in his presence and that the cheque was not handed over to him by the accused. PW1 cannot say as to who wrote the contents of Exhibit P1 cheque. Crl. Appeal No. 1074/2008 : 5 : When the learned counsel for the accused made a specific suggestion that the handwriting and signature in Exhibit P1 cheque is not that of the accused, PW1 stated that the same is not known to him. However, PW1 denied the suggestion that the accused never had any transaction with him and that the transaction was between the accused and his wife. 9. The evidence of PW1 in cross examination clearly discloses that he has no direct knowledge regarding the issuance and execution of the cheque. It is also pertinent to note that even though PW1 stated that the accused entrusted the cheque to his wife, he has not examined his wife to prove that it was the accused who executed and issued Exhibit P1 cheque. Therefore, in the absence of any _prima facie_ evidence regarding the execution and issuance of the cheque, the complainant cannot claim the benefit of the presumption under Section 139 of the NI Act. 10. When the accused was questioned under Section 313 Cr.P.C., he stated that he never had any transaction with the complainant and that the cheque produced in this case is not his cheque and he never issued any cheque to the complainant. To prove the offence under Section 138 of the NI Act, it is necessary Crl. Appeal No. 1074/2008 : 6 : to establish that the cheque in question was drawn by the accused on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge of any debt or other liability. In this case, in spite of the specific contention of the accused that Exhibit P1 cheque is not drawn by him from an account maintained by him with the bank, the complainant has not taken steps for producing the account details of the accused. ## 11. 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 was improbable or doubtful or the same was illegal, the onus would shift to the complainant. ## 12. 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 Crl. Appeal No. 1074/2008 : 7 : 13. 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. 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 drawn not only from the materials brought on record by the Crl. Appeal No. 1074/2008 : 8 : 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. **15.** It is well settled that 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 that the accused is not required to prove his case beyond reasonable doubt. But, as noticed earlier, the evidence of PW1 in cross examination would clearly show that he has no direct knowledge regarding the execution and issuance of Exhibit P1 cheque and that according to PW1, the cheque was handed over by the accused to his wife and he was not present at that time. 16. Therefore, in the absence of any satisfactory evidence regarding the execution and issuance of Exhibit P1 cheque by the accused to the complainant, I find no reason to interfere with the findings in the impugned judgment and in that circumstance, I find that this appeal, which is devoid of merit, is liable to be dismissed. Crl. Appeal No. 1074/2008 : 9 : In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. sd/- **JOHNSON JOHN, JUDGE.** Rv