IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 CRL.A.No. 1190 of 2001() ------------------------ CC.327/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... APPELLANT: COMPLAINANT: --------------------------------------------- P. CHANDRAN, S/O. CHANDUKUTTY KANIYAMCHOLA HOUSE, CHEKKERI NIDUMPOIL BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ACCUSED ------------------------------------------ 1. MARY JOSEPH, W/O. JOSEPH C.J. COOLIE, THOTTUKADAVU VEEDU MALAYAMPADI P.O., KANICHAR AMSOM & DESOM 2. STATE, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM BY ADV SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 SRI.P.P.RAMACHANDRAN FOR R1 R2 BY PUBLIC PROSECUTOR SMT. LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 1190 OF 2001 ------------------------------- Dated this the 18th November, 2008. JUDGMENT Having aggrieved by the order of acquittal passed by the trial court in a complaint for prosecution under Section 138 of the Negotiable Instruments Act, the complainant therein preferred this appeal in this Court. 2. The case of the complainant is that the first respondent- accused borrowed a sum of Rs.60,000/- from the complainant during the month of March 1997 connected with the marriage of her daughter with a promise that the same would be returned within six months. It is the further case of the complainant that after six months when the complainant demanded return of the amount the first respondent issued the cheque in question towards the complainant. According to the complainant the cheque is dated 17.4.1998, which went for collection dishonoured for want of sufficient funds. Accordingly a lawyer notice was caused to sent to the accused at the instance of the complainant and in spite of the said demand no amount was returned and hence he approached the Crl. Appeal No: 1190/01 2 trial court by filing a complaint. The court received the complaint on file and instituted C.C.327/98 and when the accused appeared the particulars of the allegations in the complaint were explained and read over to the accused to which she pleaded not guilty. Accordingly further trial was undertaken by the court below during which P.Ws.1 and 2 were examined from the side of the complainant and Exts.P1 to P7 were marked. When the incriminating circumstances were put to the first respondent she denied the same and it is the further case of the first respondent that she did not issue the cheque in question to the complainant and there was no transaction between herself and the complainant as alleged by the complainant. It is the specific case of the accused that her husband was a subscriber to a kuri transaction and when there was default there was a mediation at the instance of one Divakaran master and as part of the said mediation and settlement the cheque in question was handed over to the said Divakaran master. Thus, according to the accused she did not execute and issued the cheque to the complainant. On the basis of the rival contentions and pleadings three issues were framed by the court below and finally it is found that the facts and circumstances involved in the case are sufficient Crl. Appeal No: 1190/01 3 to cast a shadow of doubt on the prosecution case and the accused had succeeded to that extent because P.W.1 admitted certain defence suggestion that there are sufficient materials to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act. Accordingly the trial court found that the prosecution had failed to prove the offence alleged against the accused and accordingly the accused is found not guilty under Section 138 of the Neogtiable Instruments Act and she is acquitted under Section 255(1) of Cr.P.C. It is the above order of acquittal challenged in this appeal. 2. I have heard learned counsel for the appellant-complainant as well as counsel for the first respondent-accused. 3. Learned counsel for the appellant submitted that as per the materials and evidence on record the appellant-complainant has issued the case against the accused in terms of the complaint. It is also pointed out by the counsel that the complainant himself deposed before the court that he was examined as P.W.1 and that the accused borrowed a sum of Rs.60,000/- from the complainant for the purpose of marriage of her daughter with the undertaking that the same will be returned within six months and the cheque in Crl. Appeal No: 1190/01 4 question was issued when the complainant demanded for return of the amount. Thus, according to the complainant, he has established a legal liability on the accused towards the discharge of the said debt and Ext.P1 cheque was issued by the accused. It is also the case of the counsel for the appellant that by producing the documents such as Exts.P1 to P7 and the oral testimony of P.Ws.1 and 2 the complainant has established his case and as such he is entitled to get the presumption under Section 138 of the Negotiable Instruments Act. Counsel also pointed out that the accused though advanced a case to the effect that the cheque in question was entrusted with the mediator, as a part of mediation the same was not substantiated. Therefore, according to the counsel, the order of acquittal passed by the court below is liable to be interfered with. 4. Per contra learned counsel for the respondent-accused submitted that the accused need not establish the case beyond a reasonable doubt as in the case of a prosecution or complaint. According to the learned counsel it is sufficient to make out a probable case. On the strength of the decisions reported in Warren Ducane Smith v. The King (AIR 1934 PC 227), Dhanna v. State of M.P {(1996) 10 SC 79} and Awadhesh and another v. State of Crl. Appeal No: 1190/01 5 Madhya Pradesh {(1988) 2 SCC 557} learned counsel submitted that if two views are possible, this Court shall accept the one which is in favour of the accused. The learned counsel also pointed out that by the impugned order the trial court once again reiterated the innocence of the accused and therefore this Court cannot be justified in interfering with such finding. According to the learned counsel the accused from the very beginning itself took the stand which will be more clear from Ext.P6 reply notice. During the cross-examination of P.W.1 the same defence is also brought out and the complainant himself had admitted the facts regarding the mediation at the instance of one Divakaran master. So, according to the learned counsel for the respondent-accused that the defence is established and it is the duty by making out a probable case and, therefore, the presumption which otherwise available to the complainant is rebutted. The Apex Court in the decision reported in Ghurey Lal v. State of U.P. {2008(4) KLT S.N.17 Case No:17 S.C.} reiterated that the appellate court can interfere only for substantial and compelling reasons and enumerated seven instances where the appellate court can interfere with the order of acquittal. In the decision reported in Johnson Scaria v. State of Kerala {2006(4) KLT Crl. Appeal No: 1190/01 6 290} this Court has held that the burden is on the complainant to prove execution and issue of cheque and the same depends upon facts of each case. It is further held in the same decision that admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes a long way to prove issuance of the cheque and 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 above decision in paragraph 19 this Court has held has follows:- “I have rendered my very anxious consideration to these aspects. The complainant is not obliged to prove the original transaction or original consideration as he is expected in a suit for recovery of money. The foundation of liability under Section 138 of the N.I. Act is the issue of the cheque for consideration and not the existence of the original consideration. The significance and efficacy of S.138 of the N.I.Act will be lost if courts were to insist on proof of the original transaction and original consideration in every Crl. Appeal No: 1190/01 7 indictment under S.138 of the N.I.Act. That certainly is not the law. In every prosecution under S.138 of the N.I.Act, the criminal court does not have to adjudicate on the liability to discharge which the cheque is alleged to be issued. That is the scheme of the Act. Of course, when the accused discharges his burden under S.139 of the N.I.Act, the court would turn back to the complainant to establish his case about the liability beyond doubt. But that situation can arise only when the burden on the accused is discharged successfully under S.139 of the N.I.Act. I have no hesitation to agree that it is not the burden on the complainant in every case – so long as the presumption under Section 139 stands, to plead, prove and establish the original transaction/original consideration to discharge the liability in which the cheque is issued. That would make S.138 cumbersome. Assignment of such a burden on the complainant will do disservice to the object, purpose and the legislative dream which prompted the legislature to enact S.138 of the N.I.Act namely the introduction of a commercial morality among the polity where cheque transactions will be as effective, efficient and efficacious as cash transactions. That is essential and necessary in a vibrant modern economy.” Crl. Appeal No: 1190/01 8 In the above decision while summarizing the law under point No:vii this court has held that: “presumption is one of law. The accused must prove the contrary. He must prove the contrary to satisfy the definition of the expression “proved” in S.3 of the Evidence Act. Throwing up many possibilities is not sufficient. He must prove the contrary to the satisfaction of a prudent mind. Of course the higher standard of proof beyond reasonable doubt will not be insisted from him. His burden is akin to that of a litigant in a civil case. Not any fanciful possibility but a practical probability which the court is able to accept as true adopting the standards of a prudent man, will have to be established by the accused to succeed in his attempt to rebut the presumption.” 5. On examination of the facts and circumstances involved in the case and in the light of the above decision, I am of the view that the accused has failed to establish her defence so as to probabilise the defence version. According to the accused the cheque in question was handed over to one Divakaran master on whose intervention the consideration has taken place. During the cross- examination the complainant has also admitted that there was some Crl. Appeal No: 1190/01 9 mediation. But there is no admission on the part of the complainant that during such mediation the Divakaran master had accepted the cheque in question, as suggested by the defence and the same was handed over to the complainant. In the defence case also nothing is mentioned as to how the cheque in question happened to reach the hands of the complainant. Apart from the mere suggestion that there was mediation and the accused had handed over the cheque to the said Divakaran master there was no evidence on all these aspects. There is also no specific case for the defence that the cheque in question was handed over to the complainant by the said Divakaran master either on the basis of the influence of the complainant or because of some collusion between them. It is also not clear the terms of the mediation. In the absence of details and evidence regarding those aspects, it cannot be said that the accused had succeeded in establishing a probable case. As observed by this Court in the above decision that the signature on the cheque in question goes a long way towards the execution of the cheque and holding of the cheque by the complainant will further show that he is the holder and the cheque was issued to the complainant. If that be so, the burden is on the accused to establish the case and her Crl. Appeal No: 1190/01 10 burden is taken to that of a litigant in a civil case. 6. It is also relevant to note that though the complainant is the holder of the cheque in question towards the transaction except the interested version of P.W.1 there is no material of evidence. In fact the complaint was preferred after receiving Ext.P7 reply notice but either in the complaint or at the time of examination of the complainant no averments or evidence was adduced to show the transaction. It is also come out from record that the complainant is conducting kuri business and towards the same he used to obtain blank stamp paper or blank cheques from the subscribers. In the above circumstances the complainant ought to have adduced much evidence to substantiate his claim. 7. Considering the entire facts and circumstances involved in the case and in view of the above discussion I am of the view that it will be beneficial for both parties to remit the matter for fresh consideration of the court below after giving an opportunity to both the parties to adduce evidence, if so advised. In the result the impugned judgment is set aside and the matter is remitted back to the trial court for fresh disposal. The parties are free to adduce further evidence to substantiate their respective contentions in view Crl. Appeal No: 1190/01 11 of the above discussions. The parties are directed to appear before the court below on 18.12.2008, on which date the trial court is directed to take up the complaint on file and to proceed with the same and dispose it of on merits. Criminal appeal is disposed of accordingly. V.K.MOHANAN JUDGE jj