Subhashini C.K. v. Remani P.D. Puthuppparampil and State of Kerala

Crl. Appeal No. 1195/2008 : 1 : ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 CRL.A NO. 1195 OF 2008 JUDGMENT DATED 08.04.2008 IN ST NO.1901 OF 2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,CHANGANACHERRY ## APPELLANT/COMPLAINANT: SUBHASHINI C.K. ATTACHIR HOUSE,, KURICHY P.O.,, CHANGANACHERRY. BY ADV SRI.M.P.MADHAVANKUTTY ## RESPONDENTS/ACCUSED & STATE: 1 REMANI P.D. PUTHUPPARAMPIL HOUSE,, MALAKUNNAM P.O.,, CHANGANACHERRY. 2 STATE OF KERALA REPRESENTED BY PUBLIC, PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. R1 BY SRI.C.S.MANILAL SRI. VIPIN NARAYAN - SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2024, THE COURT ON 29.05.2024 DELIVERED THE FOLLOWING: Crl. Appeal No. 1195/2008 : 2 : ## **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 1195 of 2008 -------------------------------------------------------Dated this the 29[th] day of May, 2024. ## **JUDGMENT** This appeal is filed against the judgment dated 08.04.2008 in S.T. No. 1901 of 2006 of the Judicial First Class Magistrate-I, Changanacherry challenging the acquittal of the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’ for short) under Section 255(1) Cr.P.C. 2. The appellant is the complainant and the complaint was filed on the allegation that towards the amount owed to the complainant, the accused issued a cheque dated 14.08.2006 for Rs.1,55,000/- and subsequently, when the complainant presented the cheque for encashment, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of the statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, the complainant was examined as PW1 and Exhibits P1 to P6 were marked. From the side of the accused, DW1 was examined. Crl. Appeal No. 1195/2008 : 3 : 4. After considering the evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving that the cheque was issued by the accused to the complainant in discharge of a legally enforceable debt and that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant. 5. Heard Sri. Ananthakrishnan A. Kartha, the learned counsel representing the learned counsel for the appellant, Sri. C.S. Manilal, the learned counsel for the first respondent and Sri. Vipin Narayan, the learned Senior Public Prosecutor for the second respondent State of Kerala. 6. The learned counsel for the appellant argued that the signature in the cheque is not disputed and that the trial court failed to appreciate the evidence of PW1 in the correct perspective and that the trial court ought to have found that the complainant has adduced satisfactory evidence to prove the execution and issuance of cheque. It is also argued that there is no satisfactory evidence from the side of the accused to rebut the statutory presumptions under Sections 139 and 118 of the NI Act in favour of the complainant. 7. The learned counsel for the accused/first respondent pointed out that the complainant has not disclosed the nature of the transaction Crl. Appeal No. 1195/2008 : 4 : with the accused in the complaint and the statutory notice and the date of execution and issuance of the cheque by the accused to the complainant is also not disclosed. It is argued that the evidence of DW1 would show that it was DW1 who entrusted Exhibit P1 signed blank cheque to the complainant as security for the amount received by her from the complainant in a chitty transaction and therefore, the findings of the trial court in the impugned judgment does not suffer from any legal infirmity. 8. In the chief affidavit of PW1, the averments in the complaint are reiterated and the cheque dated 14.08.2006 is marked as Exhibit P1. In cross examination, PW1 stated that Sujatha Sasi, a close relative of the accused, is her neighbour. According to PW1, the accused is an LIC agent and she advanced the loan to the accused out of the sale consideration of her property sold during October, 2006. PW1 would say that she handed over the money to the accused on 14.07.2006. The evidence of PW1 is that the accused came to the house of the complainant to receive the money. PW1 admitted that her husband is conducting cases in Changanassery and Palakkad. But, she is not in a position to say anything regarding the nature of the said cases. In another part of the cross examination, PW1 stated that the accused handed over the cheque to her after 30 days of advancing the money Crl. Appeal No. 1195/2008 : 5 : and that the cheque was handed over while she was in her shop. PW1 would say that nobody else was there in the shop when the accused handed over Exhibit P1 cheque to her. PW1 denied the suggestion that the accused never had any financial transaction with her and the accused has not handed over Exhibit P1 cheque to her. 9. DW1, Sujatha Sasi, is the sister of the husband of the accused. According to DW1, she subscribed for a chitty conducted by the complainant and when she received the money from the complainant in the chitty transaction, the complainant demanded a cheque as security and since she was not having an account, she obtained Exhibit P1 cheque from the accused and handed over the same to the complainant. According to DW1, Exhibit P1 was a signed blank cheque. In cross examination, DW1 stated that the chitty conducted by the complainant was not having Government approval and there is also no document for subscription and payment of money in the said chitty. 10. At the time of 313 questioning, the accused stated that she had no acquaintance with the complainant and she never had any financial transaction with the complainant. The accused also stated that the cheque entrusted by her to the sister of her husband is misused by the complainant to file this case. Crl. Appeal No. 1195/2008 : 6 : **11.** In this case, the accused examined DW1 to establish that there existed no debt or liability at the time of issuance of the cheque and therefore, the question to be considered is whether the accused proved the non existence of debt or liability by a preponderance of probabilities by referring to the particular circumstance of the case, as held by the Honourable Supreme Court in _**Rajesh Jain v. Ajay Singh**_ [2023 (6) KHC 391] 12. 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 the particular circumstances of the case. 13. I find force in the argument of the learned counsel for the accused/first respondent that in view of the evidence of DW1 that she entrusted Exhibit P1 cheque to the complainant as security in connection with a chitty transaction, the complainant ought to have adduced clear evidence regarding the nature of the transaction between the accused and the complainant and also regarding the execution and issuance of the cheque. It is true that non-disclosure of the nature of Crl. Appeal No. 1195/2008 : 7 : the transaction between the parties in the notice is not fatal and that the suppression of the particulars of the transaction in the complaint is not sufficient to order acquittal as held by this Court in _**Basheer K. v. C.K. Usman Koya and another**_ [2021 (2) KHC 432]. But, in this case, the evidence of PW1 in cross examination shows that DW1 is her neighbour and it is also pertinent to note that while cross examining DW1, the counsel for the complainant has not specifically challenged the evidence of DW1 in chief examination that the complainant herein conducted a chitty. There is nothing in the evidence of PW1 to show any close association or previous business transaction with the accused and in that circumstance, the evidence of PW1 that she advanced a sum of Rs.1,55,000/- to the accused without obtaining any receipt or document from the accused on the date of the transaction is not at all reliable. 14. It is also pertinent to note that the case of PW1 is that the accused handed over the cheque while the complainant was in her shop and that no other person was present in the shop of the complainant at that time. The accused has also challenged the source of PW1 to advance such a huge amount to the accused and even though PW1 stated that she used the sale consideration of a property sold during October, 2006 for advancing the amount to the accused 30 days before the date of the cheque. I find no reason to disagree with the observation of the trial court that in the absence of any documentary Crl. Appeal No. 1195/2008 : 8 : evidence, the testimony of PW1 in this regard is not at all reliable. In this connection, it is worthwhile to note that the cheque is dated 14.08.2006 and the alleged source of the complainant is the sale of the property during October, 2006. ## 15. In **Bharat Barrel & Drum Mfg. Co. v. Amin Chand** **Payrelal [(1999) 3 SCC 35],** the Honourable Supreme Court held that the non existence of consideration for the cheque can be proved by raising a probable defence and if it is shown that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant. ## 16. In **Harbhajan Singh v. State of Punjab (AIR 1966 SC** **97),** the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities 17. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in **M.S.Narayana Menon v. State of Kerala (2006 (6) SCC 39),** and it was held that if some material is brought on record consistent with the innocence of the Crl. Appeal No. 1195/2008 : 9 : accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. 18. 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. (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. Crl. Appeal No. 1195/2008 : 10 : 19. It is well settled that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible, as held by the Honourable Supreme Court in _**K. Prakashan v. P.K. Surendran**_ [2008 (1) SCC 258]. When the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable, it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. 20. On a careful re-appreciation of the entire evidence, I find no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and in that circumstance, the appeal is liable to be dismissed. In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. sd/- **JOHNSON JOHN, JUDGE.** Rv