IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 CRL.A.No. 635 of 2001() ----------------------- CC.70/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, PERAMBRA .................... APPELLANT: COMPLAINANT: ----------- JACOB GEORGE, S/O.GEORGE, CHANGAROTH AMSOM, AVADUKKA, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS:ACCUSED & STATE: ------------- 1. KARUNAKARAN, S/O.KRISHNA KURUP, KADIYANGAD AMSOM, DESOM, KOYILANDY TALUK. 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.VARGHESE C.KURIAKOSE SRI.SANTHARAM.P THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-2-2008 , THE COURT ON 12/02/2008 DELIVERED THE FOLLOWING: K. HEMA, J. ------------------------------------- Crl.A.No. 635 of 2001 ------------------------------------- Dated this the 12th day of February 2008 JUDGMENT This appeal arises from an order of acquittal. The complainant is the appellant. First respondent is the accused. The offence alleged was under Section 138 of the Negotiable Instruments Act ('the N.I. Act for short'). The trial court, after analysis of the evidence held that the complaint is not maintainable since it was not filed within one month of the date on which cause of action arose. On this finding, the accused was acquitted and hence this appeal. 2. Learned counsel appearing for the appellant, argued that the court below failed to consider the fact that the last day on which complaint ought to have been filed falls on Sunday viz. 7.3.1999. Hence, the complaint could be filed on the next day i.e. 8.3.1999 in view of Section 10 of the General Clauses Act. In support of his argument, learned counsel cited the decision rendered by a Division Bench of the erstwhile Travancore-Cochin High Court on 29.2.1952 in Crl.R.P.Nos.365-369 of 1124. In the said decision, it was held as follows: “We are therefore of the view that the position taken by the Allahabad High Court in Raja Pando v. Sheopujan Pando (AIR 1942 All. 429) is more in accordance with the [Crl.A.635/01] 2 principles of equity and justice. We prefer to follow the same and hold that the six months period prescribed in S.75 of the Factories Act is governed by S.10 of the General Clauses Act; so that if the six months expired on a gazetted holiday, the complaint could be filed on the next day when the court sat. The view of the learned Magistrate that the action started by the Inspector of Factories is barred by limitation is not correct.” In the light of the dictum laid down in the above decision, I find that 7.3.1999 being a holiday, and the complaint being filed on 8.3.1999, the complaint is well within the time stipulated under Section 142 of the N.I. Act. The complaint ought not to have been been dismissed on that ground. 3. But, the next question is whether the first respondent-accused can be convicted on the basis of the evidence on record and the findings in the impugned judgment. Even if the finding on the question of maintainability is reversed, before convicting a person, this court has to be satisfied that evidence on record would establish the guilt of the accused. On an analysis of the evidence on record, the trial court held that the transaction put forward by the accused was not acceptable, since the signature in the cheque Ext.P1 is admitted. It was also held that legal presumption for consideration is available, since Ext.P1 is issued to PW1. Ext.P1 was held to be issued by the accused for legally enforceable debt as the evidence adduced regarding the debt stands unrebutted. The relevant portion from the impugned judgment is extracted as hereunder: [Crl.A.635/01] 3 “The signature in Ext.P1 is seen admitted by the accused. So in view of the available evidence on record I am not inclined to accept the transaction as put forward by the accused without any reliable evidence. Therefore I am of the view that Ext.P1 is issued to PW1 and so the legal presumption for consideration is available. Therefore I hold that Ext.P1 was issued by the accused for a legally enforceable debt, since the evidence adduced regarding the debt stands unrebutted.” 4. On going through the impugned judgment, it is clear that the evidence adduced by the prosecution has not been evaluated by the trial court in the right perspective. The trial court only considered whether the defence case is probable or not and whether it can be accepted or not. Like any other criminal prosecution, in a trial for offence under Section 138 of the N.I. Act, the burden is on the prosecution to establish by cogent evidence the guilt of the accused beyond reasonable doubt. The prosecution shall prove all the ingredients of the offence. The fact that Ext.P1 was drawn by the accused is the most relevant fact which has to be proved by the prosecution, but no discussion is seen made on this aspect, though there is specific denial by the accused of execution of Ext.P1 and it is contended that Ext.P1 cheque was not executed by him. 5. The trial court ought to have analysed the evidence of PW1 and other circumstances to enter a finding whether cheque was drawn by the accused or not. By merely rejecting the defence contention the court cannot come to the conclusion that the prosecution case is [Crl.A.635/01] 4 proved. The rejection of a defence case is not a ground to hold that the prosecution has proved its case. But, that is what is done in this case. The approach is perverse. In any criminal trial, the court has to consider the evidence adduced on the side of the prosecution and find out whether prosecution has proved all the ingredients of offence. 6. In the case of offence under Section 138, the rebuttal of presumption arises only if the pre-requisites under Section 139 are established. The court has to consider whether the accused has rebutted the presumption under Section 139, only if the basis for drawing the presumption is established by the complainant. In this case, the court has not looked into whether the basis for drawing the presumption under Section 139 arises or not and if such presumption is available to the complainant. At any rate, drawing of the cheque is a necessary ingredient, without proof of which, the court shall not draw presumption under section 139, as evidenced from a reading of Section 139 itself. There is no presumption regarding the existence of a legally enforceable debt under Section 139 of the Act. 7. In short, the Court has not considered whether the prosecution has proved all the ingredients of offence. Presumption under Section 139 was drawn without being satisfied of proof of all the necessary pre-requisites for drawing the presumption under Section 139. In such circumstances, I am unable to concur with the findings of [Crl.A.635/01] 5 the trial court and enter a conviction against the accused. At the same time, I am satisfied that if the accused is acquitted without a proper consideration of all the aspects, it will result in great injustice. Therefore, the only course open is to remand the case for a reconsideration. The order under challenge is therefore set aside and the case is remanded to the court below for fresh consideration and disposal, in accordance with law. The parties shall appear before the trial court on 10.3.2008. This appeal is allowed. K. HEMA, JUDGE. Krs. [Crl.A.635/01] 6 K. HEMA, J. ----------------------------------------- Crl.A.No. 635 of 2001 ------------------------------------------ 12th day of February 2008 JUDGMENT