IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937 CRL.A.No. 813 of 2004 ( ) AGAINST THE [ENTITY] IN [CASE NUMBER] of HIGH COURT OF KERALA DATED 18-05-2004 AGAINST THE [ENTITY] IN [CASE NUMBER] of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, [ENTITY] DATED 16.03.2004 APPELLANT/COMPLAINANT [ENTITY], S/O KARUNAKARAN PUTHENPURAYIL HOUSE, VALERY P.O., EDAVAKA VILLAGE [ENTITY]. BY ADV. [ENTITY] RESPONDENTS/ACCUSED & STATE 1. [ENTITY], [ENTITY], [ENTITY]. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HON'BLE COURT OF KERALA, ERNAKULAM. R2 BY [ENTITY], PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [ENTITY], J. Crl. [CASE NUMBER] Dated this the 19th day of January, 2016 [ENTITY]
Leave granted on 18.05.2004 in [CASE NUMBER].
2. The appellant, who is the complainant in [CASE NUMBER] before the Judicial First Class Magistrate-II, Mananthavady challenges the order of acquittal of the accused under [SECTION] of the [ACT]. Complainant's case was that accused borrowed a sum of Rupees Fifty thousand from him and in discharge of that liability accused issued Ext.P1 cheque. When Ext.P1 cheque was presented for encashment through SBT, Mananthavady, it was dishonoured for the reason of insufficiency of funds. The complainant demanded the amount by giving a notice in writing. Even after notice, there was no payment. In the circumstances, the above complaint was filed before the Judicial First Class Magistrate Court-II, Mananthavady.
3. During trial complainant was examined as PW-1 and his documents were marked as Exts.P1 to P6. Accused was examined as DW-1 and his document was marked as Ext.D1. The learned Magistrate, after analysing the oral and documentary evidence, acquitted the accused. Being aggrieved by that, complainant preferred this appeal.
4. The learned counsel for the appellant contended that Ext.P1 was issued in discharge of a debt which was proved in the trial court. The defence evidence was accepted by the trial court without considering the document with the complainant. There was no reply to the demand notice. In such a situation, Ext.D1 is not an admissible evidence. Moreover, no reply notice was issued by the first respondent even after acceptance of Ext.P4 lawyer notice.
5. The learned counsel appearing for the first respondent strongly opposed the above argument and contended that the transaction between appellant and the first respondent was properly entered in Ext.P1. The first respondent borrowed a sum of Rupees Thirty thousand and at the time of borrowal, Ext.P1 and a stamp paper for Rupees Fifty thousand were entrusted to the appellant which is specifically mentioned in Ext.D1. Misappropriating that Ext.P1 cheque, foisted a false case.
6. The Apex Court in [PRECEDENT] reads as follows:
Complaint under [SECTION] must contain the following ingredients, viz., (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; (iii) cheque so issued had been returned due to insufficiency of funds.
7. To prove the aforesaid ingredient, complainant was examined as PW-1 in the trial court. The evidence of PW-1 shows that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of insufficiency of funds. Ext.P2 is the dishonour memo. Ext.P3 is the slip issued by NMG Bank. Appellant demanded the amount by giving a notice in writing. Ext.P4 is the lawyer notice. Ext.P5 is the postal receipt. Ext.P6 is the acknowledgement card. When cheque is dishonoured for the reason stated under [SECTION] of the [ACT], the presumption under [SECTION] can be drawn in favour of the holder of the cheque.
8. [SECTION] of the [ACT] reads as follows:
"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 [SECTION] for the discharge, in whole or in part, of any debt or other liability."
The Apex Court in Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145] held that under [SECTION] of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who drew the cheque. The aforesaid presumption is in favour of the holder of cheque. It is not mentioned in the Section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should advance evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption.
9. This was followed in [PRECEDENT]. To rebut the presumption under [SECTION] of the [ACT], the first respondent was examined as DW-1 who is the collection agent of the appellant's firm. DW-1 deposed that appellant borrowed a sum of Rupees Thirty thousand and at the time of borrowal, Ext.P1 cheque and a signed stamp paper was entrusted to the appellant. As per Ext.D1, a sum of Rs.49,500/- was given to the appellant. The trial court analysed the oral and documentary evidence and came to a conclusion that the presumption under [SECTION] of the [ACT] was properly discharged. Therefore, accused discharged his initial burden and rebutted the presumption and the trial court acquitted the accused.
I find no illegality in the above finding of the court below. Appellant failed to prove that Ext.P1 was issued in discharge of a debt or liability. There is no illegality in the finding. No merit in this appeal and the same is dismissed accordingly.
[ENTITY] JUDGE true copy P.A. to Judge