SIVASANKARAN S/O N.P. KRISHNA MOORTHY v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021/26TH KARTHIKA, 1943 CRL.A NO. 651 OF 2006** **AGAINST THE JUDGMENT IN ST 3896/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKARA, KOZHIKODE Crl.L.P. 153/2006 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT/COMPLAINANT:** SIVASANKARAN,S/O N.P. KRISHNA MOORTHY AGED 45 YEARS, KANNANTAVIDA HOUSE,, P.O. PALLIKKARA, KOYILANDY TALUK,, KOZHIKODE DISTRICT. BY ADV K.RAMAKUMAR (SR.) ## **RESPONDENTS/ACCUSED & STATE:** 1 M.ASHOK RAJ,S/O VIJAYAN AGED 42 YEARS, L.I.C. AGENT,, MATHRANGOTTU VEEDU, POOKOD LAKE ROAD,, 12TH BRIDGE, (PANTHRANDAM PALAM),, VYTHIRI, WAYANAD DISTRICT. 2 STATE OF KERALA ,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-682 031. BY ADV PUBLIC PROSECUTOR SRI.SANAL P.RAJ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2021, THE COURT ON 17.11.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.651/2006 -:2:- J U D G M E N T Dated this the 17[th ] day of November, 2021 This is an appeal filed against acquittal u/s 378(4) of the Code of Criminal Procedure (for short, “Cr.P.C.”) in ST No.3896/2003 on the file of the Judicial First Class Magistrate Court, Vadakara. 2. The parties are referred to in this judgment as they were referred to in the impugned judgment i.e., the complainant and the accused. 3. The complaint was filed for prosecuting the accused for an offence punishable u/s 138 of the Negotiable Instruments Act (for short, 'the NI Act'). It was alleged that the accused who is the friend of the complainant borrowed a sum of `50,000/- on 10/3/2003 promising to repay the said amount within a week and issued Ext.P1 cheque towards the discharge of the said liability, that the cheque on presentation was dishonored for want of sufficient funds, that Ext.P5 notice demanding payment was not heeded to, and, therefore, the accused committed an offence Crl.Appeal No.651/2006 ## -:3:- punishable u/s 138 of the NI Act. 4. PW1 was examined and Exts.P1 to P12 were marked on the side of the complainant. DW1 was examined and Exts.D1 to D4 were marked on the side of the accused. 5. The Court below on appreciation of evidence found that complainant failed to prove that Ext.P1 cheque was issued towards the legally enforceable debt and that the case put forward by the accused is more probable and believable and hence, no offence u/s 138 of the NI Act was made out. Accordingly, the accused was acquitted u/s 255(1) of the Cr.P.C. as per the impugned judgment. Challenging the said judgment, the complainant preferred this appeal. 6. Even though notice was served to the first respondent, there is no appearance. I have heard Sri.K.Ramakumar, the learned Senior Counsel for the appellant/complainant. 7. The learned Senior Counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext.P1 cheque by examining PW1 and, hence, the presumption u/s 138(9) of the NI Act would come into play and the accused failed to rebut the said presumption. The Counsel Crl.Appeal No.651/2006 -:4:- further submitted that the defence raised by the accused does not inspire confidence or meet standards of preponderance of probabilities. The Court below went wrong and committed illegality in acquitting the accused, argued the counsel. The learned Senior Counsel has cited the following decisions in support of his arguments: (1) _**Sripati Singh (since deceased) through his son Gaurav Singh v. State of Jharkhand and Another**_ [2021 (6) KHC 207] and (2) _**Bir Singh v. Mukesh Kumar**_ [2019 (1) KHC 774] 8. The Negotiable Instruments Act raises two presumptions, firstly in regard to the passing of consideration as contained in Section 118 therein and secondly, the presumption that the holder of the cheque receiving the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and Crl.Appeal No.651/2006 -:5:- circumstances of each case. Of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. 9. As stated already, the case set up by the complainant is that he and the accused were friends and out of the said relationship, the accused borrowed a sum of `50,000/- from him on 10/3/2003 agreeing to repay it within one week and issued Ext.P1 cheque towards the repayment of the said amount. The definite case set up by the accused from the very inception is that the cheque in question was issued to one Mr.Abdul Salam as a security towards some other transaction. The accused contended that he was the Secretary of Sri Sri Ravi Shankar Vidya Mandir at Payyoly and one Mr.Kalloli Rajan was its Joint Secretary. Mr.Kalloli Rajan purchased a vehicle from one Mr.Abdul Salam for the use of the school. Since the vehicle was under hypothecation, the accused gave Ext.P1 cheque to Mr.Abdul Salam as a security for the said transaction. Thereafter, the relationship between the accused and Mr.Kalloli Rajan strained. On settling the vehicle transaction between Mr.Kalloli Rajan and Mr.Abdul Salam, the cheque issued by the accused was taken back by Mr.Kalloli Rajan Crl.Appeal No.651/2006 -:6:- from Mr.Abdul Salam. It is further contended that Mr.Kalloli Rajan through the present complainant presented the said cheque, got it dishonored and a false complaint was filed. In short, the accused specifically denied the alleged transaction between the complainant and him and the issuance and execution of the cheque projected by the complainant. The accused has taken his defence in Ext.P8 reply notice itself. To substantiate the defence case, the accused himself was examined as DW1 and Exts.D1 to D4 were marked. The oral evidence of PW1 has to be evaluated in the light of the above defence case set up by the accused and the evidence given by the defence to substantiate his defence case. 10. It appears from the averments in the complaint and the chief examination of PW1 that the cheque in question was issued on the date of borrowal. But, in cross-examination, PW1 stated that cheque was issued on 18/3/2003. PW1 stated that the signature in the cheque was put by the accused in his presence, but, he could not say who filled up the entries in the cheque. Even though PW1 claims to be the friend of the accused, he could not say where exactly at Wayanad the accused resides. PW1 also Crl.Appeal No.651/2006 -:7:- deposed that he cannot say for what purpose the accused borrowed money from him. Ext.D1 is an agreement executed by Sri.Abdul Salam in favour of Sri.Kallolli Rajan. The vehicle transaction between them as well as the issuance of cheque by the accused as a security to the said transaction has been clearly recited in the said agreement. The number of Ext.P1 cheque has been clearly mentioned in the said agreement. It is pertinent to note that Ext.D1 agreement is dated 6/2/2003 whereas Ext.P1 cheque is dated 18/3/2003. DW1 has also given evidence in tune with his defence version. Even though he has been crossexamined in length, nothing has been brought out from his testimony to discredit his evidence. 11. It is true that the signature in the cheque is admitted. The defence case is that cheque was issued as a security to another transaction. In _**Sripathy Singh**_ (supra) cited by the learned Senior Counsel for the appellant, the Apex Court has held that if in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such payment; if the loan amount is not repaid in any other form before the due date or if there is no Crl.Appeal No.651/2006 -:8:- other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. In _**Bir Singh**_ (supra), the Apex Court held that when a blank cheque is voluntarily signed and handed over by the accused towards some payment, it would attract presumption u/s 139 in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In this case, the definite case of the defence is that the cheque in question was issued as a security to another transaction between one Mr.Abdul Salam and Mr.Kalloli Rajan. The defence does not admit that the cheque in question was issued as a security towards the loan transaction between the complainant and the accused. Similarly, the accused does not admit that a signed blank cheque was handed over by him to the complainant. Hence, the dictum laid down in the above two decisions cited by the learned Senior Counsel would not apply to the facts of this case. 12. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to Crl.Appeal No.651/2006 -:9:- discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case was successful in discharging the burden by cross-examining PW1, by examining DW1 and producing Exts.D1 to D4 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Therefore, the presumption under Sections 118(a) and 138 of the NI Act is over. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable. 13. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The Apex Court in _**K.Prakashan v. P.K.Surenderan**_ [(2008) 1 SCC 258] has held that if two views are possible, the Crl.Appeal No.651/2006 -:10:- appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. 14. For the reasons stated above, I find no reason to interfere with the order of acquittal by the court below vide the impugned judgment. The appeal fails and it is only to be dismissed. In the result, the appeal is dismissed. ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**