Remadevi v. Vimala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 CRL.A.No. 1585 of 2003() ------------------------ CC.8/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT(S): COMPLAINANT. -------------------------- REMADEVI, D/O.MALLAKSHIAMMA, DEVI SADANAM, PALLIMANNUR, KELANKAVU, MANIYAR, PUNALUR VILLAGE. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): ACCUSED/RESPONDENTS. ----------------------------------- 1. VIMALA, D/O.PADMAKSHI, GEETHA VILASOM, KOCHUPLACHERI, KALAYANADU, VLACODU VILLAGE. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.PRAVEEN K. JOY FOR R1 R2 BY P.P. SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------- CRL.A. No.1585 of 2003 ---------------------------------------------Dated, 17[th] March, 2009. ## JUDGMENT This is an appeal preferred by the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act as she is aggrieved by the order of acquittal passed by the trial court acquitting the accused under section 255(1) of Cr.P.C. 2. The case of the complainant was that the accused borrowed a sum of Rs.75,000/- from the complainant and when demanded the amount back, accused issued a cheque for the said amount and the cheque when presented for encashment, it was dishonoured for the reason “funds insufficient”. Thereafter the complainant caused to send a statutory notice stating the dishonour of the cheque and demanding for the payment of the amount covered by the dishonoured cheque. As no payment was made, the CRL.A. 1585/03 ## **-:2:-** complainant approached the court below by preferring the complaint whereupon C.C.No.8/2000 was instituted. When the accused appeared, particulars of the offence were read over and explained to her and she pleaded not guilty. Thereafter the complainant herself was examined as PW1 and produced Exts.P1 to P5. The accused herself mounted to the box and examined herself as DW1 and one more witness was examined from the side of the defence. Besides the above oral evidence, Ext.D1 pass book was produced as defence exhibit. The defence set up by the accused is to the effect that the complainant was an employ of the shop run by the accused and when the business was stopped, she paid Rs.3000/- each to the other employees and though she was willing to pay Rs.5000/- to PW1, she was not amenable for the same. It is also her case that when she vacated the premises, where the shop was running, the landlord paid her a sum of CRL.A. 1585/03 ## **-:3:-** Rs.5,00,000/- and at the alleged time of availing loan by the accused from the complainant, she was having sufficient fund and there is no necessity for her to borrow money from the complainant. Thus the trial court, based upon the rival pleadings and materials on record, formulated 5 issues for its consideration. The first issue was, ''whether the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt or other liability?” Though the findings under other points are in favour of the complainant, the finding under point No.1 was in favour of the accused and the trial court concluded that the complainant failed to establish that Ext.P1 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. Accordingly the trial court found that the accused is not guilty of the offence for which she is charged and accordingly, she is acquitted. It is the above finding and CRL.A. 1585/03 ## **-:4:-** order of acquittal challenged in this appeal. 3. I have heard the learned counsel appearing for both the appellants as well as the respondent. 4. The learned counsel for the appellant submitted that the learned Magistrate overlooked the evidence adduced by the complainant as PW1. It is also argued that the trial court, without any basis, simply believed the concocted story of defence. The learned counsel pointed out that the accused miserably failed to issue a stop memo to her bank in case of the cheque was fraudulently obtained by the complainant. The accused has also failed to make any complaint before the police or before any other appropriate authority. But without considering these aspects, the trial court simply believing the deposition of DWs 1 and 2, acquitted the accused. It is also argued that the accused failed to send any reply to the notice sent by the complainant and such act of the accused is sufficient CRL.A. 1585/03 ## **-:5:-** to draw presumption that the accused had admitted the transaction. It is the case of the learned counsel that though PW1 has stated that after 10.11.99, she had not gone to the shop of the accused, it does not mean that there was no liability from the accused to the complainant. It is also pointed out that the version given by DWs 1 and 2 are conflicting in nature and, therefore, the learned Magistrate has committed a wrong in accepting those evidence. Therefore, it is argued that the trial court ought to have convicted the accused and therefore this Court be interfered with the order of acquittal passed by the trial court and reverse the order of acquittal to an order of conviction and appropriate sentence may be imposed against the respondent/accused. 5. On the other hand, the learned counsel appearing for the respondent submitted that the complainant has miserably failed to establish the transaction, execution and CRL.A. 1585/03 ## **-:6:-** issuance of the cheque and therefore, the complainant is not entitled to get the presumption as provided under section 139 of the Act. It is further submitted that though the complainant has failed to discharge the initial burden, so as to avail the presumption under section 139 and the same is not available to the complainant in the present case, the accused has succeeded in making out a probable case and thereby rebutted the presumption. According to the learned counsel, the trial court, after considering the entire materials and evidence on record, came into a correct decision and thereby acquitted the accused and hence no interference is warranted. 6. I have carefully considered the arguments advanced by both the counsels and also perused the materials and evidence on record. The specific allegation of the complainant is that the accused borrowed a sum of Rs.75,000/- and when demanded back, the accused CRL.A. 1585/03 ## **-:7:-** issued a cheque for the said amount showing the date as 22.11.99. There is no factual averments in the complaint as to when the accused demanded the amount and the purpose for availing the loan and also on which date the amount was given to the accused. It is also clear from the averment that the period of loan is conspicuously absent. It is not stated when the amount was demanded back. But when PW1 was examined, it is stated that the loan was availed on 21.10.99. During her cross examination, she had admitted that the accused was running a coffee and curry powder shop and the complainant used to purchase coffee powder from there. According to her, it was on 10.11.99 as the last date on which she purchased coffee powder. It is also stated that after 10.11.99, she had gone to the shop of the accused for demanding the money. In this juncture, it has to be noted that the specific defence set up by the accused is to the effect that the complainant CRL.A. 1585/03 ## **-:8:-** was one of her employees and when the business was stopped, she paid Rs.3000/- to each of the employees and she was willing to pay Rs.5000/- to the complainant, but she was not amenable for such settlement. By producing Ext.D1 pass book, the accused substantiated the fact that on 29.10.99 she had deposited a sum of Rs.3,50,000/- with Santhosh financiers. So According to DW1, on the date of the alleged borrowal of loan, actually there was no financial stringency for the accused to borrow such amount and she was financially in good condition. It is also proved that she had received a sum of Rs. 5,00,000/- from the landlord for vacating the premises prior to 29.10.99. PW1 had also admitted that the accused had received a sum of Rs.5 lakhs from the landlord. It was also admitted by PW1 during the cross examination that : പ�ത�യ��� curry powder ഇപ��ഴ�ല. പ�ത� �ലര�ല ന�ന�� �ണ� കട� വ�ങ�യ�ര�ന�. പ�ത�യ�ടട കടയ�ല ഇപ��ള ത�ണ��ടയ�ണ�. അത�ന� മദ!സയ�യ� ഞ�ന ന�ന�ല. SSR Textiles ന� മത� കറ� �&ഡറ�ടനറ കട CRL.A. 1585/03 ## **-:9:-** ടക�ട��ണ, അത�ടനറ കടയ�ല പ��കണ� എന� ഞ�ന �റഞ�ല. പ�ത� കട ടക�ട�ത�ട� 5 ലക� ര/� വ�ങ� എനറ�ഞ�. 1999 -ല�ണ� എന� പത�ന�ന�. ഞ�ന �ണ� ടക�ട���നത�ന� മ�ന� മ�റ�.'' So from the above admission of the complainant it is crystal clear that before the alleged borrowal of the amount from the complainant, the accused had got Rs.5 lakhs from her landlord for vacating the shop premises and if that be so, there was no financial stringency for the accused so as to avail a sum of R.75,000/- from the complainant. It is also discernible on a perusal of the complaint that the complainant had no specific case as to why the accused borrowed the amount and when was the amount borrowed, what was the period of loan and what was the due date of repayment of the loan etc. The trial court found that regrading the execution of the cheque, there is no consistent version supported by any cogent evidence. CRL.A. 1585/03 ## **-:10:-** 7. The accused by examining herself as DW1 and on examining another witness as DW2 and on producing Ext.D1 pass book, it is established that at the alleged time of the borrowal of loan, there was no necessity for the accused to take such a loan. The above factum is substantiated through clear and cogent evidence. DW2 is a social worker who deposed before the court below about the offer of the accused for paying Rs.5000/- to PW1. Thus the accused has succeeded in establishing the suggestion for paying compensation to PW1, connected with the dispute between herself and the complainant. In the complaint, the complainant has not stated anything about the coffee powder business of the accused and the purchase of coffee powder by the complainant from the said shop. Those facts were admitted by the complainant only when she was subjected to severe cross examination. It is under the above circumstances, the trial court found CRL.A. 1585/03 ## **-:11:-** that the accused has succeeded in establishing a probable case. ## 8. In the decision reported in **Krishna Janardhan** **Bhat v. Dattatraya Hegde (2008 (1) KLT 425 (SC),** the Apex court has held that existence of legally recoverable debt is not a matter of presumption under section 139 and it does not raise a presumption in regard to existence of a debt also. In the present case, even the pleadings in the complaint is not sufficient to show that there was an existing debt or liability. In the same decision, the Apex Court has held that “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'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by CRL.A. 1585/03 ## **-:12:-** reference to the circumstances upon which he relies”. In the present case, by examining DW1 and DW2 and producing Ext,D1 document, the defence has succeeded in establishing a probable case. Going by the above evidence of the defence, I am of the view that the defence had succeeded in establishing a probable case and as rightly held by the trial court, the accused had succeeded in rebutting the presumption under section 139 of the N.I.Act. 9. On application of the dictum laid down by the Hon'ble Supreme court in the decision in reported in **M/s. Kumar Exports v. M/s. Sharma Carpets** ( 2009 (1) Supreme 231), it can be seen that the accused had discharged her burden of rebutting the presumption not only by adducing the defence evidence, but also on the basis of the presumption of fact and other circumstances which I discussed earlier. Therefore , I find no reason to interfere with the finding arrived on by the court below and accordingly, the finding so arrived by the court below is confirmed. 10. In the decision reported in **Bactu Venkateshwarlu and Ors, v. Public Prosecutor H.C. of A.P.** (2009(1) Supreme 67), the Apex Court has held that in a case of acquittal, there is a double CRL.A. 1585/03 ## **-:13:-** presumption in favour of the accused and there mus be substantial and compelling reasons for holding that the trial court was wrong. Unless such finding, the appellate court cannot interfere with the order of acquittal in exercise of its appellate jurisdiction. In the light of the above discussion and the materials and evidence referred above, I find no reason to hold that the finding of the trial court is wrong and hence there is no scope for interference with the order of acquittal. In the result, there is no merit in the appeal and accordingly, the same is dismissed. ## **V.K.MOHANAN, JUDGE** kvm/- CRL.A. 1585/03 ## **-:14:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: