IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 CRL.A.No. 914 of 2001() ----------------------- CC.68/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT(S): -------------- T.P.MOHANAN, S/O. CHINDAN, RESIDING AT KELOTH, PAYYANUR, P.O.PAYYANUR, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): --------------- 1. C.V. HARINDRAN, AGED 41 YEARS, S/O. C.V. KUNHAMBU. GOLDSMITH, LAVANYA JEWELLERY, EVEREST BUILDING, RESIDING AT KARUVACHERRY, PAYYANNUR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A.914 OF 2001 ---------------------------------------------- Dated, 19th February, 2009. JUDGMENT This is an appeal preferred by the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act. The grievance of the appellant/complainant is that the trial court acquitted the accused under section 255(1) Cr.P.C. on flimsy grounds. 2. The case of the complainant is that the accused borrowed a sum of Rs. 45,000/- from the complainant on 1.9.96 with an undertaking to pay back the same within one month. According to the complainant, on the date of borrowal itself, a cheque dated 2.12.96 for an amount of Rs.45,000/- was issued to the complainant. The cheque in question was presented for collection and the same was dishonoured for the reason of insufficiency of funds. Hence the complainant caused to send a lawyer notice to the accused on 4.12.96 intimating the dishonour of the cheque and demanding payment of the amount covered by the dishonoured cheque. According to the complainant, though -:2:- CRL.A. 914/01 the accused received the notice, neither a reply was sent nor the amount was paid. Therefore, the complainant approached the court below by filing the complaint for prosecuting the accused under section 138 of the N.I.Act. On appearance of the accused, particulars of the allegations were read over and explained to him and he pleaded not guilty. Consequently, trial was continued during which the complainant himself was examined as PW1 and Exts.P1 to P4 documents were produced and marked from the side of the complainant. When the incriminating circumstances put to the accused, he denied the same. The case set up by the defence is to the effect that there was no transaction between the accused and the complainant, and he had not received the amount and no cheque was issued to the complainant. According to the accused, the cheque in question was given to one Vijayan and the said Vijayan and the complainant colluded and as a result of which the present complaint is field. Except Ext.D1 summons, no evidence was adduced from the side of the defence either oral or documentary. The trial court finally found that the accused has -:3:- CRL.A. 914/01 successfully rebutted the presumption otherwise available in favour of the complainant, and accordingly, the court found that the accused has not committed the offence punishable under section 138 of the N.I.Act. Accordingly, the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard the learned counsel Mr.M.V.Amaresan, the learned counsel appearing for the appellant. Though notice was served on the respondent/accused, he has not chosen to appear before this court or making arrangements to defend the appeal. 4. The learned counsel submitted that the finding of the court below is absolutely unsustainable and liable to be interfered with. The learned counsel pointed out that though a statutory notice was sent and received by the accused, no repayment was given. It is also pointed out by the learned counsel that the execution and issuance of the cheque is completely admitted by the accused as there was no challenge against the case of the complainant either by disputing the proper receipt of the demand notice or by cross-examining the -:4:- CRL.A. 914/01 complainant, who was examined as PW1. The learned counsel pointed out that it is only at the time of section 313 statement the accused raised a case to the effect that the cheque in question was given to one Vijayan and the learned counsel submitted that during the cross examination of the complainant, no such case was put in the cross examination and no evidence is adduced to substantiate such contention. It is also submitted by the learned counsel that there is no challenge regarding the endorsement contained in Ext.P1 cheque. Hence, according to the learned counsel, the finding of the court below that the defence had succeeded in rebutting the presumption, is incorrect and unwarranted. Therefore, according to the learned counsel, the order of acquittal is liable to be interfered with. 5. I have carefully considered the contentions advanced by the learned counsel and also perused the evidence and materials on record. The specific case of the complainant is that the accused had borrowed a sum of Rs,45,000/- and the said loan was given out of the friendship among the complainant and the accused. When PW1 was examined, he had categorically stated -:5:- CRL.A. 914/01 regarding the transaction. Even though the trial court has found that there is mistake regarding the name of the accused shown in the complaint and in the notice etc., the trial court found that the presumption available in favour of the complainant under section 139 is successfully rebutted by the accused. Therefore, what is to be considered is whether the defence has succeeded in rebutting the presumption and whether the finding of the trial court is correct in that respect. 6. In this juncture it is relevant to note that though the accused has received the statutory notice sent at the instance of the complainant, the accused has not chosen to send reply to the said notice. During cross examination of PW1, no suggestion was put to him that the cheque in question was actually issued to one Vijayan and no such cheque was issued to the complainant. It is also relevant to note that there is no cross examination with respect to the contents in Ext.P1 cheque. Suffice it to say that the defence has not adduced any other evidence to substantiate its plea that the cheque in question was handed over to one Vijayan. In the decision in Johnson Scaria -:6:- CRL.A. 914/01 v. State of Kerala (2006 (4) KLT 290) , this Court has held that “Admission of signature in a cheque goes a long way to prove the execution. Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But under Section 114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered” .In the present case, according to me, though a pleading was taken to the effect that the cheque in question was given to one Vijayan and that too at the belated stage of Section 313 examination, no evidence is adduced and therefore, according to me, on the basis of the above bare denial or bare plea, it cannot be said that the defence has succeeded in discharging his burden of rebutting the presumption. Of course, in order to rebut the presumption, the accused need not be examined himself as a -:7:- CRL.A. 914/01 witness or adduce his on separate evidence. The defence can always make out its case from the admitted evidence of the complainant and other materials on record. It is also true that the standard of proof required in the case of defence need not be of the same standard as that of the prosecution and the defence can make out its case by preponderance of probabilities. But in the present case, except the bare plea raised during the 313 statement, no other materials or evidence are shown to probabilise the plea and therefore, according to me, the finding of the court below is not correct in the absence of materials and evidence. While considering the evidence of the complainant, the court has only considered the probable case of the defence. Therefore, according to me, it is only just and proper to remand back the case to the trial court for fresh consideration by giving opportunities to both the parties to adduce evidence to substantiate their respective contentions. 7. In the result, the finding of the court below that the defence has succeeded in rebutting the presumption available in favour of the complainant, is set aside and the matter is remitted -:8:- CRL.A. 914/01 back to the trial court for fresh consideration. For the purpose of deciding the above question, the impugned judgment is set aside. The complainant is directed to appear before the court below on 19.3.2009 on which day, the court below is directed to take up the complaint on file and to secure the presence of the accused and thereafter proceed with the complaint and dispose of the same in the light of the above discussion. Since the case is pertained to the year 1997 and the cause of action and the date of transaction is pertained to the year 1996, the court below is directed to expedite the trial, as early as possible, at any rate, within six months from the date of receipt of the judgment and the records. The appeal is allowed by remitting the matter to the court below. V.K.MOHANAN, JUDGE. kvm/- -:9:- CRL.A. 914/01 V.K.MOHANAN, J. CRL.A. 914/2001 JUDGMENT DATED: 19.2.2009.