Rajasekharan Nair v. V. Ramakrishnan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH JULY, 2011 / 16TH ASHADHA, 1933 CRL.A.No. 1058 of 2011 ------------------------------(LEAVE GRANTED AS PER ORDER IN CRL.LP.489/2011 Dated 24/06/2011) (AGAINST JUDGMENT DATED 9.5.2011 IN ST.1752/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, THIRUVANANTHAPURAM) .................... APPELLANT(S): COMPLAINANT --------------------- RAJASEKHARAN NAIR, RESIDING AT SRUTHI, MAVARATHAL COMPOUND, KARRIKKAKOM BEACH P.O., THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENTS(S): ACCUSED & STATE --------------------------- 1. V.RAMAKRISHNAN, SENIOR ASSISTANT BHATWARI, COMMERCIAL SECTION,ADMINISTRATIVE BLOCK, 2501424 EXTENSION 2447, AIRPORT, THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1058 of 2011** **----------------------------------------** Dated this the 7th day of July, 2011 ## **J U D G M E N T** The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court. 2. The case of the complainant is that the accused borrowed `.57,000/- from him and in discharge of the same, the accused had executed and issued Exts.P1 and P2 cheques, which when presented for encashment, dishonoured and the accused failed to pay the amount in spite of the statutory notice and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. The complainant himself was examined as PW1 and Exts.P1 to P7 documents were produced from the side of the complainant during the trial and no evidence was adduced from the side of the accused. Third party exhibits Exts.X1 and X2 were marked. After conclusion CRL.R.P.NO.1058 of 2011 :-2-: of the trial, the learned Magistrate found that the accused is not guilty and accordingly, he is acquitted under Section 255(1) of the Cr.P.C. and it is the above order challenged in this appeal. 3. I have heard Sri.J.S.Ajithkumar, learned counsel appearing for the appellant and I have also perused the judgment of the trial court. 4. Learned counsel for the appellant vehemently submitted that the finding of the learned Magistrate is contrary to law and facts and the finding of the learned Magistrate that the accused has discharged the liability is without any evidence. According to the learned counsel, as the issuance of the cheque and signature are not disputed, the learned Magistrate ought to have found that the cheque in question was issued to discharge the existing liability. It is also the submission of the learned counsel that the learned Magistrate failed to consider that the accused has not issued any reply to the legal notice which itself is sufficient to hold the liability of the accused connected with the cheque in question. It is also the submission of the learned CRL.R.P.NO.1058 of 2011 :-3-: counsel that the learned Magistrate is wrong to disbelieve the evidence of PW1 after extracting one or two sentences from the deposition of the complainant. It is also the submission of the learned counsel that in the absence of any evidence adduced by the defence, the learned Magistrate has committed wrong in holding that the accused has rebutted the presumption. 5. I am unable to sustain the above contentions. As I indicated earlier, the specific case of the complainant is that the accused borrowed `.57,000/- from the complainant and towards the discharge of the liability, the accused issued two cheques viz., Exts.P1 and P2. 6. On the other hand, the case of the accused is that he had borrowed Rs.50,000/- from the complainant during the year 2004-05 and connected with the said transaction, he had issued two blank signed cheques as security in favour of the complainant. The learned Magistrate, who has got the opportunity to watch and assess the demeanour of PW1/ the complainant, after considering the entire deposition of PW1, is not satisfied with the way of answer given by CRL.R.P.NO.1058 of 2011 :-4-: PW1 to the specific question, which is quoted as follows:- “ ത�ങള ച�ക� ച��ട�തപ��ള പ�ഖ വ�ങ�യ���പ��?(Q) അത�ണപ�� ച�ക�. (A) ഇപ��ള ത� ച�ക� അത�ന�.” 7. According to the learned counsel, the first part of the answer given by PW1 shows that the cheque mentioned therein is with respect to the earlier transaction and not with respect to the present one. The learned counsel could not convince this Court as to why two cheques ie., Ext.P1 dated 29.9.2006 for `.22,000/- and Ext.P2 cheque dated 3.10.2006 for Rs.35,000/- were issued by the accused if the purpose was to discharge the liability of `.50,000/-. Absence of proper explanation in this regard points towards the acceptability of the defence version. According to the accused, he borrowed `.50,000/from the complainant, by way of cheque, for which he had issued two cheques as security and the said liability was discharged. But, according to the accused, the present case was instituted by misusing the cheques so obtained as security since the accused was not prepared to pay `.7000/- as interest. In this juncture, it is pertinent to CRL.R.P.NO.1058 of 2011 :-5-: note that the complainant has no explanation as to why he gave an amount of `.50,000/- to the accused without any document and without adopting the earlier method of payment i.e., by way of cheques. In the extracted portion of the evidence of PW1, as correctly pointed out by the learned Magistrate, the above evasive answer regarding the cheque in question is not acceptable. It is also a fact found by the learned Magistrate from the evidence that according to PW1, Exts.P1 and P2 cheques were written by the accused, but the date and name were put by PW1, as told by the accused. As rightly held by the learned Magistrate, if the accused writes the amount, he can also endorse the other details i.e., the date and name of the payee. Therefore, by assigning a cogent reason, the learned Magistrate was not inclined to accept the version of PW1 that the cheques Exts.P1 and P2 were executed and issued by the accused connected with the transaction as claimed by the complainant. Having regard to the facts and circumstances involved and the materials referred to above, I am of the view that the learned Magistrate is fully justified in holding that CRL.R.P.NO.1058 of 2011 :-6-: the accused has succeeded in establishing a probable case and thereby, rebutted the presumption as contemplated under Section 139 of the N.I.Act. 8. Learned counsel for the petitioner submitted that in the absence of any evidence from the side of the defence, it cannot be said that the defence has discharged its burden to rebut the presumption. The Honourable Apex Court in the decision reported in **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008(1) KLT 425 (SC)] has held that existence of a legally recoverable debt is not a matter of presumption under Section 139 of the N.I.Act and it does not raise a presumption in regard to the existence of a debt also. It was also held that the standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities' and inference of preponderance of probabilities can be drawn not only from the CRL.R.P.NO.1058 of 2011 :-7-: materials brought on record by the parties but also by reference to the circumstances upon which he relies. In the light of the principles laid down in the above decision, I am of the view that the learned Magistrate is fully justified in holding that the accused has discharged his burden in rebutting the presumption. 9. In the decision reported in **Ghurey Lal** v. **State of U.P.** [2008(4) KLT SN 17 (C.No.17), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the said decision, the Apex Court has held that the Appellate Court can interfere with an order of acquittal only for very substantial and compelling reasons. Reiterating the same position, the Apex Court has held in **Batcu Venkateshwarlu and Ors.** v. **Public Prosecutor, High Court of A.P.** [2009(1) Supreme 67] that in the case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong and then only, the appellate court can, while exercising the appellate jurisdiction, CRL.R.P.NO.1058 of 2011 :-8-: interfere with the order of acquittal passed by the trial court. In the light of the above decisions, I do not find any substantial or compelling reasons to interfere with the findings of the trial court so as to reverse the order of acquittal. In the result, this appeal is devoid of any merit and accordingly, the same is dismissed. sd/- **V.K.MOHANAN, Judge** MBS/ -true copy- P.S.TO JUDGE. CRL.R.P.NO.1058 of 2011 :-9-: **V.K.MOHANAN, J** . CRL.R.P.No. 69 OF 2001 CRL.R.P.NO.1058 of 2011 :-10-: ## **ORDER** Dated:23.6.2011