IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 Crl.Rev.Pet.No. 155 of 2009(D) ------------------------------ CRA.233/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA ST.109/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, HARIPAD .................... REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- MURALI, S/O.JANAKI, KADEECKOTTIL VEEDU, PATHIYANKARA MURI, THRIKKUNNAPUZHA VILLAGE. BY ADV. MR.K.SASIKUMAR MR. S. SREEDUTT RESPONDENTS/ RESPONDENTS/COMPLAINANT & STATE -------------------------------------- 1. SANKARAN, S/O.RAMAKRISHNAN, PRAVEEN NIVAS, VALIYAPARAMBU P.O., KIZHAKKEKKARA SOUTH MURI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. P.R. JAYAKRISHNAN FOR R2 MR.V.MADHUSUDHANAN FOR R1 MR.V.VENUGOPAL FOR R1 MR.B.UNNIKRISHNA KAIMAL FOR R1 MR.ANIL K.NAIR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- CRL.R.P.No. 155 OF 2009 -------------------------------------------------- Dated this the 2nd day of February, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T.109 of 2006 on the file of Judicial First Class Magistrate-I, Haripad. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Additional Sessions Court, Mavelikkara in Crl. Appeal 233 of 2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and first respondent were heard. 3. Learned counsel argued that Courts below wrongly drawn the presumption provided under section 139 of Negotiable Instruments Act when evidence of PW1, the first respondent, is sufficient to rebut the presumption, if any available. It was pointed out that according to PW1 he is a CRRP 155/2008 2 driver of a tourist taxi and is having only 10 cents of immovable property and on 20.3.2004 his wife had taken a loan of Rs.50,000/- and he had no other amount in his possession till 26.1.2005 as alleged and therefore first respondent could not have granted a loan of Rs.1,40,000/- on 26.1.2005 and therefore the case that Ext.P1 cheque was issued towards repayment of a loan obtained on 26.1.2005 is disproved and in such circumstances the conviction is not sustainable. Learned counsel appearing for first respondent argued that Courts below rightly drawn the presumption under section 118 and 139 of Negotiable Instruments Act and there is no reason to interfere with the conviction. 4. On going through the evidence of PW1 and the judgments of the Courts below, it is absolutely clear that the evidence was not properly appreciated. Even though section 139 of Negotiable Instruments Act enables the Court to draw the presumption provided thereunder either on admission of execution or proof of execution of the cheque, it is not an irrebuttable presumption. It is definitely a rebuttable presumption. That presumption could be rebutted by cross- CRRP 155/2008 3 examining the complainant or bringing out necessary relevant materials to disprove the case of the complainant. The standard of proof on the part of the accused is less and it can be proved by showing even broad probabilities. It is not necessary for the accused to get himself examined as a witness in this case. The fact revision petitioner did not send a reply to the notice issued under section 138(b) of Negotiable Instruments Act or did not examine himself as a witness, are not sufficient reasons to draw the presumption or to hold that the presumption is not rebutted. If by cross-examining PW1/first respondent, revision petitioner has established that on 26.1.2005 he could not have granted a loan of Rs.1,40,000/-, for repayment of which according to first respondent Ext.P1 cheque was issued. Evidence of PW1 is that he is a tourist taxi driver and his wife is getting remuneration as a teacher by teaching to write on ground and his son is a coolie PW1 unambiguously admitted that on 20.3.2004 his wife had borrowed Rs.50,000/- and apart from that amount he was not having any other cash with him. He also deposed that till 26.1.2005 he was not having any other money with him. It is the case of the revision petitioner in the complaint as well as in chief CRRP 155/2008 4 examination that Rs.1,40,000/- was borrowed by revision petitioner on 26.1.2005. When the evidence of PW1 establishes that he could not have granted a loan of Rs.1,40,000/- as he was only in possession of Rs.50,000/- and that too obtained by his wife as loan, he could not have granted a loan of Rs.1,40,000/- on 26.1.2005. The very case of the first respondent is unbelievable. If his wife had taken a loan of Rs.50,000/- on 20.3.2004, it cannot be believed that revision petitioner will grant a loan of Rs.1,40,000/- without any liability to pay interest and that too to be repaid after seven months. Unfortunately Courts below did not appreciate these relevant and necessary facts and wrongly drawn the presumption under section 139 of Negotiable Instruments Act for convicting the revision petitioner. As it is proved that first respondent could not have granted a loan of Rs.1,40,000/- on 26.1.2005 it can only be found Ext.P1 cheque was not issued towards discharge of any debt or liability. Hence conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act is unsustainable. Revision is allowed. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act CRRP 155/2008 5 as confirmed by Additional Sessions Judge in Crl. Appeal 233 of 2007 is set aside. Revision petitioner is found not guilty of the offence. He is acquitted. The bail bond executed by him stands cancelled. M. SASIDHARAN NAMBIAR, JUDGE okb