P.T. Rajan Amboori v. T.K. Viswambharan & State of Kerala

Crl. Appeal No. 1369/2007 : 1 : ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ## CRL.A NO. 1369 OF 2007 JUDGMENT DATED 22.05.2007 IN CC NO.479 OF 2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, NEYYATTINKARA ## APPELLANT/COMPLAINANT: P.T.RAJAN AMBOORI EDITOR, AKSHARA POOJA AND AKSHARABHOOMI, CONVENT ROAD, NEYYATTINKARA. BY ADV SRI.G.SUDHEER ## RESPONDENTS/ACCUSED & STATE: - 1 T.K.VISWAMBHARAN PROGRAM MANAGER, B.S.S.I.T.,, SCHOOL PROJECT, NEAR GANDHI PARK,, PARASSALA P.O. - 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADVS. R1 BY SRI. THOMAS M.JACOB R1 BY SMT. V .MANGALA R2 BY SRI. VIPIN NARAYAN, SR. PUBLIC PROSECUTOR SRI.G.RAJAGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2024, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING: Crl. Appeal No. 1369/2007 : 2 : ## **JOHNSON JOHN, J.** ------------------------------------------------------Crl. Appeal No. 1369 of 2007 -------------------------------------------------------Dated this the 20[th] day of May, 2024. ## **JUDGMENT** This appeal is filed against the judgment dated 22.05.2007 in C.C. No. 479 of 2005 of the Judicial First Class Magistrate-V, Neyyattinkara, whereby the accused was found not guilty of the offence under Section 138 of the Negotiable Instruments Act ('NI Act' for short) and acquitted under Section 255 Cr.P.C. 2. The appellant is the complainant. The case of the complainant is that for the discharge of a legally enforceable debt due to the complainant, the accused has issued 2 cheques bearing Nos. 500813 and 500812 dated 15.11.2004 for a sum of Rs.65,000/- and Rs.60,000/- respectively and subsequently, when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, PWs 1 and 2 were examined and Exhibits P1 to P9 were marked from the side of the complainant and Exhibit D1 Crl. Appeal No. 1369/2007 : 3 : marked from the side of the accused. After considering the evidence on record and hearing both sides, the trial court found that there is no satisfactory evidence to arrive at a conclusion that the complaint was filed by the payee and therefore, in the absence of a proper complaint by the payee as contemplated under Section 142 of the NI Act, the accused cannot be held liable for the offence under Section 138 of the NI Act and acquitted the accused under Section 255 Cr.P.C. 4. Heard Sri. G. Sudheer, the learned counsel for the appellant, Sri. Thomas M. Jacob, the learned counsel for the first respondent and Sri. Vipin Narayan, the learned Public Prosecutor. 5. The learned counsel for the appellant argued that the payee in Exhibits P1 and P1(a) cheques is the Chief Editor of Akshara Bhoomi and that Akshara Bhoomi is a sole proprietary concern and that the complainant is the sole person who can operate the account of Aksharabhoomi and therefore, the finding of the trial court that there is no proper complaint under Section 142 of the NI Act is not legally sustainable. It is also argued that the execution of the cheque and signature is not disputed and therefore, the trial court ought to have found that the accused has failed to rebut the presumption under Sections 118 and 139 of the NI Act. Crl. Appeal No. 1369/2007 : 4 : 6. But, the learned counsel for the first respondent argued that there is no averment in the complaint or the statutory notice that the complainant is the Chief Editor of Akshara Bhoomi or that the complaint is filed in his capacity as Chief Editor of Akshara Bhoomi and that the averments in the complaint will clearly disclose that the complainant filed the complaint in his individual capacity and therefore, there is no valid reason to interfere with the findings in the impugned judgment of the trial court. 7. A perusal of the complaint shows that the address of the complainant is P.T Rajan Amboori, Editor of Akshara Pooja and Akshara Bhoomi, Convent Road, Neyyattinkara. As noticed earlier, the payee in Exhibits P1 and P1(a) cheques is the Chief Editor, Aksharabhoomi. Even though the address of the complainant is shown as Editor of Akshara Pooja and Akshara Bhoomi, there is no averment in the complaint that he filed the complaint in his capacity as the Editor of Akshara Bhoomi and there is also no averment in the complaint or the statutory notice to disclose the nature of the transaction between the complainant and the accused, except the averment that the cheque was issued for the discharge of a legally enforceable debt due to the complainant by the accused. Crl. Appeal No. 1369/2007 : 5 : 8. The complainant is examined as PW1 and in paragraph 2 of chief affidavit, it is stated that the accused borrowed Rs.1,25,000/- from the complainant and in discharge of the said debt, the accused issued Exhibits P1 and P1(a) cheques and there is no averment in the chief affidavit that the said transaction was in his capacity as Chief Editor of Akshara Bhoomi. 9. The Manager of Federal Bank, Statue Branch, is examined as PW2 and Exhibit P8 is an account opening form in the name of Akshara Bhoomi monthly and according to PW2, the said account is operated by Rajan Amboori. But, it is pertinent to note that there is nothing in the evidence of PW2 to show that Exhibit P8 account is in the name of Chief Editor of Akshara Bhoomi, who is the payee in Exhibit P1 series cheques. 10. In cross examination, PW1 admitted that Exhibit D1 is a copy of the magazine Aksharabhoomi and as per Exhibit D1, the Chief Editor of the said Magazine is Sindhujen Ambatt and the Editor is Bindu Madhav and the name of the complainant is not shown either as the Chief Editor or Editor of Magazine, Aksharabhoomi. In cross examination, PW1 would say that he is the Chief Editor of the Magazine Akshara Pooja. 11. The learned counsel for the first respondent invited my attention to Section 18 of the Press and Registration of Books Act, 1867 to point out that registration of memoranda of books, including details Crl. Appeal No. 1369/2007 : 6 : regarding Editor of the book, the name or firm of the printer and the name or the firm of the publisher are mandatory and further, Section 19 of the said Act also requires publication of memoranda registered in the official Gazette and therefore, the complainant could have produced the said document to prove his contention that he is the Chief Editor of Akshara Bhoomi magazine. 12. The nature of the standard of proof required for rebutting the presumption under Section 139 of the NI Act was considered by the Honourable Supreme Court in _**M.S Narayana Menon v State of Kerala**_ [(2006) 6 SCC 39] and it was held that if some material is brought on the 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 be acquitted. 13. 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. Crl. Appeal No. 1369/2007 : 7 : (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 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. (v) It is not necessary for the accused to come in the witness box to support his defence. 14. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence. 15. As noticed earlier in this case, there is no averment in the complaint or the statutory notice that the complainant is the Chief Editor Crl. Appeal No. 1369/2007 : 8 : of Akshara Bhoomi magazine and it is not in dispute that the payee in Exhibits P1 and P1(a) cheques is the Chief Editor of Akshara Bhoomi magazine. 16. In cross examination, PW1 admitted that Exhibit D1 is the copy of the magazine Aksharabhoomi and he also admitted that his name is not shown as the Chief Editor in Exhibit D1. From Exhibit D1, it can be seen that the Chief Editor of the said Magazine is Sindhujen Ambatt and the Editor is Bindu Madhav and since the payee in Exhibits P1 and P1(a) cheques is the Chief Editor of Akshara Bhoomi, I find no reason to disagree with the finding in the impugned judgment that there is no evidence to arrive at a conclusion that the complaint was filed by the payee in the cheque 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. sd/- **JOHNSON JOHN, JUDGE.** Rv