Suresh M. v. P. Sasidharan Nair & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 12[TH] DAY OF JULY 2024 / 21ST ASHADHA, 1946** **CRL.A NO. 860 OF 2006** **AGAINST THE JUDGMENT DATED 22.09.2005 IN ST NO.26 OF 2005 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE.** **(Crl.L.P. NO.239 OF 2006)** ## **APPELLANT/COMPLAINANT:** **SURESH M., S/O. MANI, AGED 33 YEARS, CHANDRATHIL HOUSE, NEAR POKOZHIKKODE SIVA TEMPLE, CHALAPPURAM P.O., KOZHIKODE.** **BY ADV SRI.K.ANTONY JOSEPH** ## **RESPONDENTS/ACCUSED & STATE:** **1 P.SASIDHARAN NAIR, S/O.MADHAVAN NAIR, APUTHENVEED PARAMBA, COURT ROAD,CALICUT. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. P.R.SREEJITH VIPIN NARAYAN, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 10.07.2024, THE COURT ON 12.07.2024 DELIVERED THE FOLLOWING:** 2 Crl.A.No.860 of 2006 ## **C.S.SUDHA, J.** **----------------------------------------------Criminal Appeal No.860 of 2006 ------------------------------------------------Dated this the 12th day of July 2024** ## **J U D G M E N T** This appeal under Section 378(4) Cr.P.C. has been filed by the appellant/complainant in S.T.No.26/2005 on the file of the Special Judicial First Class Magistrate (Marad Cases), Kozhikode aggrieved by the judgment dated 22/9/2005 by which the first respondent/accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the NI Act). 2. According to the appellant/complainant, the first respondent/accused, a close acquaintance, on 22/09/2003 borrowed an amount of ₹1,00,000/- promising to repay it on 22/09/2004. In discharge of the aforesaid debt, the first respondent/accused issued Ext.P1 cheque dated 22/09/2004. Ext.P1 cheque was issued from the account of the first respondent/accused with the Lakshmi Vilas Bank Limited, Cherootty Road Branch, Kozhikode. The cheque on 3 Crl.A.No.860 of 2006 being presented was dishonoured due to insufficient funds in the account of the first respondent/accused. Exts.P2 and P3 are the dishonour memo and intimation of dishonour respectively. The appellant/complainant issued Ext.P4 lawyer notice dated 29/09/2004 calling upon the first respondent/accused to clear the cheque amount within fifteen days from the receipt of the notice. Ext.P4(a) is the postal receipt relating to the notice. The lawyer notice was received by the accused on 04/10/2004, which is evident from Ext.P4(b) acknowledgment card. The accused never cleared the amount and hence the complaint alleging the commission of the offence punishable under Section 138 of the NI Act. 3. The accused on appearance before the trial court was enlarged on bail. The particulars of the offence was read over and explained to the accused to which he pleaded not guilty. The complainant was examined as PW1 and Exts.P1 to P4(b) were marked. The accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances which came on record against him. He denied the commission of the offence and 4 Crl.A.No.860 of 2006 contended that Ext.P1 cheque had been handed to one Sanjeev Kumar, when the former had borrowed money about six years back and had issued a blank signed cheque as security to ensure due payment of interest. It is the said cheque that had been misused by the complainant and the present false complaint filed. No oral or documentary evidence was adduced by the accused. 4. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, acquitted the accused under Section 255 (1) Cr.P.C. finding that the accused had been able to rebut the presumption contained under Section 118 of the NI Act. Aggrieved, the complainant has come up in appeal. 5. When the matter came up for hearing, neither the appellant nor his counsel were present. On 13/09/2021, this Court had directed notice to be served on the counsel for the appellant as there was no representation on his behalf. The notice issued by the registry to the counsel for the appellant returned unserved stating - “no such address in the building”. Therefore, the registry was directed to issue notice to the appellant/complainant through 5 Crl.A.No.860 of 2006 the Station House Officer (SHO), Kasaba Police Station, Kozhikode. The SHO has filed report dated 09/10/2021 to the effect that despite earnest efforts to trace out the whereabouts of the complainant, he was unable to do so and that his enquiry revealed that the complainant had left home about ten years back and that he was residing somewhere in Palakkad district. His enquiry also failed to reveal the present whereabouts of the appellant/complainant. In the light of the said report, no purpose would be served by issuing a fresh notice to the appellant/complainant. The learned counsel for the first respondent/accused was heard. I have gone through the entire records in this case including the deposition of PW1, the documents marked and the impugned judgment. 6. In the appeal memorandum it is alleged that the trial court went wrong in finding that the first respondent/accused had rebutted the presumption contained under Section 118 and 139 of the NI Act. The trial court lost sight of the fact that the issuance of Ext.P1 cheque and the signature in the same have been admitted by 6 Crl.A.No.860 of 2006 the first respondent/accused. The accused failed to adduce any evidence to rebut the presumption contained under Section 118. However, the court on a total misappreciation of the evidence on record as well as the law on the point, acquitted the accused, which judgment is perverse and illegal and hence requires to be reversed, goes the argument. 7. It is well settled that the primary burden to establish the execution of the cheque is on the complainant and it is only when the said burden is discharged, the onus would shift to the accused to rebut the presumption contained under Section 118 of the NI Act. Here, the complainant examined as PW1 to a certain extent stands by the case averred in the complaint. The fact that Ext.P1 cheque had been issued from the account of the accused and that it contained the signature of the accused is admitted. However, mere admission of signature in the cheque would not prove its execution. The ingredients necessary to make out a complaint under Section 142 of the NI Act, that is, presentation of Ext.P1 cheque within the period of its validity, its dishonour due to insufficient funds in the 7 Crl.A.No.860 of 2006 account of the accused, notice of dishonour being served on the accused and failure of the accused to clear the cheque amount within a period of fifteen days are satisfied. The initial burden of the complainant stood discharged and the onus therefore shifted to the first respondent/accused to rebut the presumption contained under Section 118. The trial court held that the onus had been discharged by the first respondent/accused and hence acquitted him. This is challenged in the appeal memorandum and therefore I will consider whether there has been a proper appreciation of the evidence on record, the law and the precedents on the point by the trial court. 8. The trial court relying on the dictums in **Bhaskaran v. Shankaran, (1999) 7 SCC 510** ; **Bharath Barrel and Drum Manufacturing Co. v. Amin Chand Pyarelal, AIR 1999 SC 1008** concluded that the accused had rebutted the presumption. The specific case of the complainant in the complaint is that he is closely acquainted with the accused. However, the testimony of the complainant when examined as PW1 makes it quite apparent 8 Crl.A.No.860 of 2006 that he has no acquaintance whatsoever with the accused. In such circumstances, it is not clear as to what prompted him to lend an amount of ₹1,00,000/- in the year 2003 to the accused, a complete stranger. PW1 in the box developed a case that he came to be acquainted with the accused through one Sanjeev Kumar. However, the said person was not examined to prove the loan transaction alleged in the complaint. It appears highly improbable and unlikely for the complainant to have advanced an amount of ₹1,00,000/- to a complete stranger. His testimony in the cross examination also creates doubts about his financial capacity to advance an amount of ₹1,00,000/-. As held by the apex court in the decisions relied on by the trial court, the burden on the accused is only to establish his case by a preponderance of probabilities and he has no burden to prove it beyond reasonable doubt. To discharge this burden, it is not necessary for the accused to mount the box or examine any witnesses on his behalf. The accused can bring out inherent improbabilities in the case of the complainant and also take advantage of the loop-holes or weakness in the case of the complaint. This has been successfully done by the accused in this 9 Crl.A.No.860 of 2006 case and hence the trial court rightly concluded that it was quite improbable for the complainant to have advanced an amount of ₹1,00,000/- as claimed in his complaint. I do not find any infirmity or perversity in the findings of the trial court calling for an interference by this Court. Hence the appeal is liable to be dismissed and I do so. Interlocutory applications, if any pending, shall stand closed. **==> picture [261 x 43] intentionally omitted <==** Sd/- **C.S.SUDHA JUDGE** ak