IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 CRL.A.No. 451 of 2002(A) ------------------------ CRA.316/1999 of SESSIONS COURT, KOZHIKOE .................... APPELLANT(S): -------------- JOHNSON SEBASTIAN, S/O.SEBASTIAN, KUNNAKKATTU HOSUE, KUMARANALLUR AMSOM,ALLI DESOM. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- 1. A.M.MUHAMMED RAFI,S/O.KUTTY HASSAN, KALATHINGAL HUSE, THAZHEKKODE AMSOM, CHENNAMANGALLOOR DESOM OF CALICUT DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECTURO, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.M.P.MOHAMMED ASLAM FOR R1 PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.451 of 2002 ----------------------------------------------- Dated 28th January, 2011. J U D G M E N T This appeal arises from an order of acquittal. 2. Appellant filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act(for short, 'the Act'). As per the allegations in the complaint, the accused went to the house of complainant on 25.7.1997 and borrowed Rs.75,000/- from him. On 12.9.1997, accused issued Ext.P1 cheque to the complainant, making complainant believe that he would get the amount. The cheque was presented, but it was returned on the ground that there was insufficiency of funds. A lawyer notice was issued, but the acknowledgement or the original notice was not received as returned. 3. According to complainant, the acknowledgment was not received because as an employee of the Postal Department, accused would have inserted influence. The accused went to the appellant with the original notice issued by the lawyer and requested appellant to give two months' time to return the money. But money was not repaid and hence in Crl.Appeal No.451/02 2 compliance of the statutory provisions, complaint was filed. The complainant examined PW1 to PW5 and marked Exts.P1 to P9. The accused did not adduce any evidence. The trial court convicted the accused, but appellate court acquitted him. 4. According to appellate court, there is no specific averment in evidence that cheque was issued for discharge of the debt. The appellate court also noted that in the complaint also, there is no averment that the cheque was issued in discharge of the amount. Therefore, it was held that complainant has not proved that Ext.P1 was issued in discharge of the loan. 5. Heard both sides. Perused records. Learned counsel for appellant argued that on a reading of the complaint, particularly, the relevant portion will clearly show that cheque was issued for discharge of the said amount. The said portion is extracted in paragraph 5 of the judgment, it was pointed out. On an over all appreciation of the evidence given by complainant and a reading of the complaint will go to show that the cheque was issued for discharge of the amount borrowed by accused from complainant, it is argued. Crl.Appeal No.451/02 3 6. Learned counsel for accused argued that the evidence has to be appreciated in totality and it will not show that the cheque was issued for discharge of the legally enforceable debt and therefore, the order of acquittal is unsustainable. It is also submitted that there is no proof for the fact that notice was received by appellant. 7. On hearing both sides and on going through the records, the appellate court held in clear and cogent terms that the execution of Ext.P1 is proved. The complainant has also a case that the said cheque (Ext.P1) was received by him. The cheque is produced from the custody of the complainant. The fact that cheque was with PW1 is not disputed also. If the cheque of the nature stated in Section 138 of the Negotiable Instruments Act is drawn by the accused and complainant has received the same, there is a presumption under Section 139 of the Act, in favour of the holder that the cheque is received for discharge of a legally enforceable debt. This important mixed question of law and facts have not been considered by the appellate court while entering a finding against appellant that there is no proof that the cheque was issued for discharge of Crl.Appeal No.451/02 4 the debt or liability. The appellate court ought to have considered the scope of the presumption under Section 139 of the Act and see whether the materials placed before court are sufficient to draw such presumption. 8. Section 139 of the Act lays down that there is a presumption in respect of the purpose for which the cheque is received by the holder. Such presumption can be drawn in favour of the holder if the pre-requisites under Section 139 are made out. The appellate court ought to have considered this aspect and find out whether the court can draw the presumption under Section 139 of the Act, on the basis of the materials placed before court. The appellate court ought to have considered whether complainant proved the purpose for which he received the cheque and whether the presumption under Section 139 would come to his rescue. 9. I make it clear that a presumption can be drawn only if the pre-requisites are established by the person who seeks to draw the presumption in his favour. Being an appeal against order of acquittal, I am not going to the task of appreciating the evidence afresh to see if the requirements are Crl.Appeal No.451/02 5 made out in evidence. (Vide also Kamalammal v. Mohanan (2006(3) KLT 972). Therefore, I am inclined to interfere with the order under challenge. It appears that in the interests of justice an opportunity has to be given to the appellant for clarifying the relevant facts in evidence. It is also necessary that in such event, the respondent is also given an opportunity to adduce any evidence on his side also if he so requests. Hence the following order is passed : (i) The order under challenge is set aside. (ii) The case is remanded to the trial court for fresh consideration and disposal in accordance with law, in the light of the observations made in this judgment. (iii) The parties shall appear before the trial court on 15.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs