IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.M.JAMES FRIDAY, THE 23RD MARCH 2007 / 2ND CHAITHRA 1929 CRL.A.No. 1736 of 2003() ------------------------ JUDGMENT DT.9.7.03 IN ST.NO.5147/99 BY JFCM, IRINJALAKKUDA APPELLANT: COMPLAINANT: ----------------------- K.R.JYOTHISH KUMAR, S/O. KAMATTATHIL RAGHAVAN, TAZHEKKAD VILLAGE,DESOM THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENTS: ACCUSED: --------------------- 1. V.A.PRADEEP KUMAR, NO.69, KSHC JYOTHI NAGAR, CHALAKUDY. 2. STATE OF KERALA THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - - Crl.A.No.1736 of 2003 (D) - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2007 J U D G M E N T The complainant in S.T.No.5147/1999 on the file of the Judicial Magistrate of the First Class Court, Irinjalakuda, is the appellant. The complaint preferred under Section 138 of the Negotiable Instruments Act, in short 'the Act', was dismissed and the accused acquitted. Hence, the complainant is before this Court, through this appeal, after obtaining leave. 2. The brief facts of this case are that, in discharge of a debt of Rs.1,10,000/-, the first respondent-accused had issued Exhibit P1 cheque. When the cheque was presented, it was dishonoured and returned with endorsement, as per Exhibit P2 memo, 'funds insufficient'. The complainant sent Exhibit P3 lawyer notice on 28/05/1999, to the first respondent. Exhibit P4 postal acknowledgment card reveals that the first respondent had received Exhibit P3, but the first respondent did not settle the amount. Therefore, the complaint was filed. Crl.A.No. 1736 of 2003 -: 2 :- 3. To prove the case, the appellant entered the box and was examined as PW.1. Seven documents were marked. But the learned Magistrate, holding that the appellant had not proved the execution of Exhibit P1 cheque by the accused and, it was issued in discharge of a debt due to the appellant, dismissed the complaint. 4. I have gone through the averments in the complaint. The complainant had stated in the complaint that Exhibit P1 cheque was issued in discharge of a debt due to him. Further, he had produced the dishonour memo issued from the drawer bank, the lawyer notice, the postal acknowledgment card, Exhibit P6, the true copy of the ledger extract maintained by the drawer bank to show that Exhibit P1 cheque was issued from an account operated by the respondent and, Exhibit P7, the true copy of the cheque return register maintained by the drawer bank. Thus, the issuance of Exhibit P1 cheque by the first respondent, from an account maintained by him in the bank is brought out. 5. The next question is whether Exhibit P1 cheque was issued for discharge of a debt or liability. In Lillykutty Crl.A.No. 1736 of 2003 -: 3 :- vs.Lawrance [2003 (3) KLT 721], a Division Bench of this Court had held, unless the contrary is proved, the presumption under Section 118 as well as under Section 139 of the Act would be that every negotiable instrument was drawn for consideration. In the case at hand, the first respondent-accused did not enter the box, nor did he adduce any evidence. 6. In Naryana Menon v.State of Kerala [2006 (3) KLT 404 (SC)], the Apex Court had an occasion to consider in detail the meaning of the words “proved” and “disproved” under Section 3 of the Indian Evidence Act and also the Court considered Sections 118 and 139 of the Act, regarding the presumption available under the said Act. The Court held that the accused need to only discharge the initial onus of proof. He need not disprove the prosecution case as a whole. Once, the initial burden has been discharged, which is a question of fact, even without entering into the box or citing and examining any witnesses, the Court may, from the circumstances and the facts of the case, conclude whether such presumption, under the Act, had been rebutted or not. Crl.A.No. 1736 of 2003 -: 4 :- 7. In the case at hand, the appellant had pleaded and deposed before the Court that Exhibit P1 cheque had been issued in discharge of the debt due to him. Nothing has been brought out through PW.1 or from any other circumstances discharging the initial onus of burden, cast by the law on the first respondent-accused, so that the Court could look on the appellant-complainant for further evidence to establish his case. There being no such circumstances, no rebuttal of presumption as contemplated in the Act and the principles contained in Narayana Menon as well as Lillykutty's cases, cited supra, I am of the opinion that the learned Magistrate did not appreciate the facts well and the findings arrived at holding the first respondent not guilty, is against both the law and facts. In view of the above position of facts and law, I hold that the findings of the court below is unsustainable. At the same time, the evidence available on record, clearly establish a case under Section 138 of the Act, against the first respondent-accused. 8. Despite, receipt of the notice from this Court, the first respondent did not appear. Therefore, I could hear only the learned counsel for the appellant-complainant. But on going Crl.A.No. 1736 of 2003 -: 5 :- through the evidence on record, I hold that as the appellant has established a case against the first respondent-accused. I hold the accused guilty of the offence punishable under Section 138 of the Act. Therefore, convict the accused thereunder. 9. The first respondent-accused being not before this Court, for the limited purpose of questioning the accused, the first respondent, on the question of sentence and thereafter to impose sentence according to the law, I remit this case back to the Judicial Magistrate of the First Class Court, Irinjalakuda. 10. The Complainant shall appear before the court below on 25/04/2007. If there is no appearance of the first respondent-accused, the learned Magistrate shall take such steps, including coercive steps, to get the presence or production of the first respondent-accused, and then proceed against him, disposing of the matter, according to the law. The appeal is allowed as above. (J.M.JAMES) Judge ms