Rajendran v. State of Kerala and Gopalakrishnan Pillai

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 CRL.A NO. 54 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENTCRA 306/2012 OF II ADDITIONAL DISTRICT COURT & II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ``` Crl.L.P. 708/2013 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/1st RESPONDENT/COMPLAINANT:`** ``` RAJENDRAN S/O.P.RAGHAVAN, RAJENDRA MANA, MEENADU EAST, CHATHANNOOR, KOLLAM DISTRICT. ``` ``` BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENTS/APPELLANT/ACCUSED:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` - `2 GOPALAKRISHNAN PILLAI S/O.SREEDHARAN PILLAI, ASHWATHY BHAVAN, MARANAD, MARANAD P.O., KOLLAM-691 505.` ``` BY ADV ``` ``` SRI.P.M.PRASANTH – GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.54/2014 ``` ..2.. ## **JUDGMENT** Dated this the 10[th] day of February, 2023 This is an appeal filed against acquittal u/s 378(4) of the Cr.P.C. in a proceedings initiated u/s 138 of the Negotiable Instruments Act (for short, the NI Act). 2. The appellant herein filed a private complaint at the Judicial First Class Magistrate Court, Paravur (for short, the trial court) against the 2[nd] respondent alleging that he has committed the offence punishable u/s 138 of the NI Act. According to the appellant, on 23.02.2007, the 2[nd] respondent borrowed a sum of Rs.1,50,000/- from him and towards the discharge of the said debt, Ext.P1 cheque was issued. The cheque on presentation was dishonored with endorsement ‘exceeds arrangement’. Ext.P4 notice u/s 138(b) of the NI Act was issued. It was received by the 2[nd] respondent as evident from Ext.P6 acknowledgment, but there was no compliance during the statutory period. Hence, the complaint was lodged. 3. The appellant himself gave evidence as PW1 and two witnesses were examined as PWs 2 and 3. Exts.P1 to P7 were marked on their side. On the side of the defence, Exts.D1 ``` Crl.A.No.54/2014 ``` ..3.. and D2 were marked. The trial court on appreciation of evidence found that the 2[nd] respondent has committed the offence punishable u/s 138 of the NI Act and accordingly he was convicted for the said offence. He was sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.1,75,000/- with default sentence of five months simple imprisonment. The fine amount on realization was directed to be paid to the appellant as compensation u/s 357 B of the Cr.P.C. Challenging the conviction of sentence, the 2[nd] respondent preferred appeal before the II Additional Sessions Court, Kollam (for short, the appellate court) as Crl.A. No.306/2012. The appellate court set aside the judgment of conviction holding that the appellant failed to prove the execution of Ext.P1. Accordingly, the appeal was allowed. Challenging the judgment of the appellate court, this appeal has been preferred. 4. I have heard Smt.Sreevidya R.S, the learned counsel appearing for the appellant and Sri.P.M. Prasanth, the learned Public Prosecutor. Even though, notice has been served to the 2[nd] respondent, there is no representation. 5. The learned counsel for the appellant submitted ``` Crl.A.No.54/2014 ``` ..4.. that the appellant has succeeded in proving the execution of Ext.P1 cheque by examining PWs 1 to 3 and hence presumption under sections 118(a) and 139 of the NI Act would come into play and the 2[nd] respondent has failed to rebut the said presumption. The appellate court committed illegality in acquitting the accused, argued the counsel. 6. To prove the transaction, execution and issuance of the cheque, the appellant himself gave the evidence as PW1 and two witnesses were examined as PWs2 and 3. PW3 is the wife of PW1. The case of the appellant is that on 23.02.2007, the 2[nd] respondent visited his house and borrowed a sum of Rs.1,50,000/- and in discharge of the said debt, Ext.P1 cheque was issued. On the other hand, the case of the 2[nd] respondent is that he borrowed a sum of Rs.75,000/- from the father in law of the appellant in the year 2003 and a signed blank cheque was issued as a security to the said transaction and the said blank cheque was misused and a false complaint was filed. 7. A negotiable instrument including a cheque carries presumption of consideration in terms of S.118(a) and S.139 of the N.I. Act. S.118(a) and S.139 read as under: ## _**118. Presumptions as to negotiable instruments.--**_ ``` Crl.A.No.54/2014 ``` ..5.. _Until the contrary is proved, the following presumptions shall be made:--_ _(a) of consideration-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"_ _"_ _**139. Presumption in favour of holder.--** It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability."_ The presumption under S.139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of S.138. 8. The Apex Court in _**Hiten P. Dalal v. Bratindranath**_ _**Banerjee**_ [(2001) 6 SCC 16] and in _**Rangappa v. Sri Mohan**_ ``` Crl.A.No.54/2014 ``` ..6.. [(2010) 11 SCC 441] held that the cheque shall be presumed to be for consideration unless and until, the Court forms a belief that the consideration does not exist or considers the nonexistence of consideration was so probable that a prudent man would under no circumstances of the case, act upon the plea that the consideration does not exist. In _**Uttam Ram v. Devinder Singh Hudan and Another**_ [2019 (5) KHC 179], it was held that when a cheque is issued, it is presumed that the cheque was drawn for consideration and the holder of cheque received the same in discharge of an existing debt. It was further observed that: " _A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability_ ". In _**Kumar Exports v. Sharma Carpets**_ [(2009) 2 SCC 513], the Apex Court held that " _bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is_ ``` Crl.A.No.54/2014 ``` ..7.. _probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist_ . In _**Bir Singh v. Mukesh Kumar**_ (AIR 2019 SC 2446), it was held that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It was further held that it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. It was also held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Recently in _**Kalamani Tex and Another v. P. Balasubramanian**_ (2021 (2) KHC 517), ``` Crl.A.No.54/2014 ``` ..8.. the Apex Court again held that once signature of an accused on cheque is established, then 'reverse onus' clause becomes operative, and in such a situation, obligation shifts upon the accused to discharge presumption imposed upon him. 9. Coming to the facts of the case, though the execution of Ext.P1 cheque was denied by the 2[nd] respondent, he did not dispute his signature therein. That apart, to prove the execution of the cheque, PW1, PW2 and PW3 also gave evidence. Pws 1 to 3 consistently deposed that on 23.02.2007, the 2[nd] respondent visited the house of the appellant and borrowed a sum of Rs.1,50,000/- and signed Ext.P1 cheque in their presence and handed over the same to the appellant. Even though, Pws 1 to 3 were cross examined in length, there is nothing to discredit their evidence. As to the source, PW3 deposed that she has obtained a loan from the bank for maintenance of her house by pledging her gold ornaments and utilising the said amount also, the amount was lent to the 2[nd] respondent. Ext.P7 receipt would substantiate that PW3 had availed loan from the bank. Thus the appellant has given details about his source also. Once signature, execution and handing over the cheque are satisfactorily proved, the ``` Crl.A.No.54/2014 ``` ..9.. presumption u/s 138 of the Act would come into play. The appellant has successfully established the signature, execution and handing over of the cheque. Even though, the defence contended that the cheque in question was issued to the father-in-law of the appellant, there is no evidence to substantiate the same. A reply notice was seen issued by the 2[nd] respondent raising the said defence, Ext.D1 is the reply notice. It would show that it was issued only on 13.04.2008, much after filing of the complaint. There is absolutely no evidence or circumstances probablising the defence set up by the accused. The appellate court, without properly appreciating the evidence, found that the appellant failed to prove the execution of the cheque. It is true that the cheque was dated 24.02.2007, but it was presented only on 08.07.2007. The appellate court found that no explanation was given by the appellant for not presenting the cheque immediately. The complainant has every right to present the cheque during its validity. The oral testimony of Pws 1 to 3 are not properly appreciated by the appellate court. The Apex court in _**Ravi Kapur v. State of Rajastan**_ [(2012) 9 SCC 284] has held that once the trial Court has ignored the material ``` Crl.A.No.54/2014 ``` ..10.. piece of evidence and failed to appreciate the prosecution evidence in the correct perspective, then it would amount to failure of justice enabling the appellate court to interfere with the judgment of acquittal. 10. For the reasons stated above, I am of the view that the impugned judgment of acquittal, cannot be sustained and is liable to be set aside. Hence, the Judgment of acquittal passed by the appellate court is hereby set aside and the judgment of the trial court is restored. The appeal stands allowed. ## **Sd/-** **DR.KAUSER EDAPPAGATH, JUDGE** ded/10.02.2023