IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Crl.L.P..No. 36 of 2009 (STC.3331/2005 of Judicial First Class Magistrate Court, TALIPARAMBA) .................... PETITIONER/COMPLAINANT: ----------------------------------------- SHAJI MARNADIYAN, S/O.N.KORAN, MENENKUNNU VEEDU, KUTTOOR P.O., MATHAMANGALAM VIA, KANNUR DISTRICT. BY ADV. SRI.VIJU ABRAHAM SRI.JOJI JOHN SRI.JOY C. PAUL SRI.DOMINIC JOHNSON RESPONDENTS/ACCUSED & STATE: ---------------------------------------------------- 1. T.SUBRAHMANIAN, M.S.HAIR CUTTING CENTRE, CHERUTHAZHAM PANCHAYATH SHOPPING COMPLEX, PILATHARAS, PILALTHARA P.O., KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.L.P.No. 36 of 2009 --------------------------------------------- Dated this the 6th day of February, 2009 J U D G M E N T Having failed in a prosecution for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'), the petitioner/complainant approached this court by filing the present petition seeking special leave to prefer an appeal against the order of acquittal passed by the court below under Section 255(1) of Cr.P.C., an order in favour of the accused who faced the trial under Section 138 of the N.I.Act. 2. The case of the petitioner/complainant is that the accused issued a cheque bearing No.17573 to discharge the debt for Rs.80,000/- to the complainant and when the same was presented for encashment, it was returned with a memo stating 'funds insufficient'. Consequently, at the instance of the petitioner/complainant, a lawyer notice was sent and though the same was received by the accused, no reply was given and no amount was paid. Hence, the complainant approached the court below by filing a complaint for the said offence. On the basis of the sworn statement of the Crl.L.P.No. 36 of 2009 :-2-: complainant and the averments in the complaint, the case was received on file as S.T.C.No.3331 of 2005 in the court of the Judicial First Class Magistrate, Taliparamba. When the accused appeared, the particulars of the allegations were read over and explained to him to which he pleaded not guilty which resulted in further trial during which the complainant himself was examined as PW1 and Exts.P1 to P5 were marked from his side. No evidence either documentary or oral is adduced by the defence. On the basis of the pleadings, appropriate issues were framed and the court finally found that the complainant had not succeeded in proving the drawal of the cheque by the accused in favour of him and so it couldnot be presumed that the cheque is drawn by the accused for discharge of debt or liability. Thus, according to the court below, mere possession is not sufficient to launch a complaint under Section 138 of the N.I.Act and it was concluded that the accused is not guilty and accordingly he is acquitted. It is the above finding and order of acquittal sought to be challenged by preferring an appeal for which leave of this Court is sought for in this petition. 3. I have heard Sri.Viju Abraham, learned counsel appearing for the petitioner. Learned counsel submits that the complainant has, by filing proof affidavit as well as by adducing Crl.L.P.No. 36 of 2009 :-3-: oral evidence, proved that the accused issued the cheque and therefore, the presumption under Section 139 is available in favour of the complainant which the trial court failed to take note of. It is also the case of counsel that when the statutory presumption is available in favour of the complainant, especially when the defence did not adduce any evidence, it cannot be said that the accused has rebutted the presumption. Thus, according to the learned counsel, the order of the court below is liable to be interfered with. 4. I have repeatedly perused the judgment of the trial court which is sought to be impugned. Learned counsel also made available to me the proof affidavit as well as the deposition of PW1. There is no averment either in the complaint or in the proof affidavit regarding the details of the debt or financial liability which is due to the complainant from the side of the accused. In the proof affidavit as well as in the complaint, it is stated that the accused borrowed a sum of Rs.80,000/- for which he issued the cheque in question. There are no details regarding the circumstances under which the accused demanded the amount from the complainant and other details. Only during the cross- examination, the complainant has stated that the accused is conducting a barber shop very near to the Mavila Paints and he Crl.L.P.No. 36 of 2009 :-4-: had acquaintance with the accused for the last 5 to 8 years as he was also working in the shop named as Mavila Paints, Pilathara. It is also his case, during cross-examination that the barber shop of the accused is very close to the Mavila Paints. On the basis of the above facts stated or admitted by the complainant, the trial court posed a question as to why PW1 stated that the transaction is made at Taliparamba. According to PW1, he is residing at Kuttoor and from Kuttoor, he came to Pilathara and then came to Taliparamba and thereafter, he had called the accused to Taliparamba and given the amount to the accused in a hotel at Taliparamba. According to PW1, his explanation is that his brother is residing at Taliparamba. His further explanation is that in order to make up the deficiency of the required amount, he came to Taliparamba and borrowed the remaining amount from his brother. Then, it was given to the accused. It is also stated by PW1 that the accused had handed over the cheque to him from Taliparamba. It is claimed by the complainant/PW1 that the accused had informed him that he would get the amount from Taliparamba and will return to him. Thus, when he reached at Taliparamba, the accused had given a cheque to him. The above explanation offered by PW1 is not acceptable to the court below, who got an opportunity to observe the demeanour of PW1. Crl.L.P.No. 36 of 2009 :-5-: 5. The trial court has also found that PW1 had admitted that the accused is hailing from Tamil Nadu and the cheque was brought after filling it. According to PW1, the accused had put his signature at the front bottom side of the cheque alone. He had particularly and categorically stated that accused has not put his signature in any other part of the cheque. It is also the case of PW1 that the accused had written his name in Malayalam and thereafter, put his signature in the cheque. The trial court found that the cheque in question contained the signature on both sides. It is also observed by the trial court that the name is seen written in English, thereafter, he put his signature. The contention of the accused is that the accused does not know Malayalam either to read or to write. After analysis of the above evidence especially in the light of the version given by the accused, the trial court found that the complainant is not the holder of the cheque. Thus, according to the trial court, there is no cogent and convincing evidence to prove that Ext.P1 cheque is drawn by the accused in favour of the complainant. Thus, the trial court further held that it cannot be said that the accused had drawn the cheque in favour of the complainant to discharge any debt or liability. 6. Going by the judgment, it can be seen that the case Crl.L.P.No. 36 of 2009 :-6-: put up by the defence is to the effect that the present complainant is the binami of one Mavila Damodaran. PW1 has admitted that he is the Salesman in Mavila Paints, Pilathara. The case suggested by the defence is that the cheque in question was given to Damodaran and the same was misused for filing a complaint by the complainant or the complainant preferred the complaint as a binami of the said Damodaran. The trial court after considering the evidence on record came to the conclusion that the complainant failed to prove that the cheque in question was executed in favour of the complainant. 7. Learned counsel for the petitioner submits that as and when the complainant is the holder of the cheque in question and the signature contained in the same is not disputed by the defence and especially, when no positive evidence is adduced from the side of the defence, the approach of the court below is arbitrary and illegal and therefore, the finding is liable to be set aside. On the basis of Section 139 of the N.I.Act, the learned counsel submits that the presumption is in favour of the complainant and the complainant has established a prima facie case to avail such presumption. Therefore, in the absence of the rebuttal of the presumption, the trial court ought to have accepted the case as such and instead of acquitting the accused, he Crl.L.P.No. 36 of 2009 :-7-: should have been convicted, learned counsel submits. 8. As I have already observed and indicated above, there is no positive averment in the complaint regarding the debt or liability and the circumstances and details which led to the alleged borrowal of the amount by the accused from the complainant and absolutely, no evidence is also adduced in this regard. In the decision reported in Krishna Janardhan Bhat v. Dattatraya Hegde [2008(1) KLT 425 (SC)], the Apex Court has held that existence of legally recoverable debt is not a matter of presumption under Section 139 and it does not raise a presumption in regard to existence of a debt also. In the very same decision, the Apex Court has further held that the accused for discharging the burden of proof placed upon him under a statute need not examine himself but he may discharge burden on the basis of materials already brought on record. It is also held that furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. In that juncture, the Apex Court has held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the Crl.L.P.No. 36 of 2009 :-8-: parties but also by reference to the circumstances upon which he relies. This Court in a decision reported in Johnson Scaria v. State of Kerala [2006(4) KLT 290] has held that admission of signature in a cheque goes a long way to prove due execution and possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. It is also held in the same decision that 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 present case, as held by the Apex Court in the decision cited supra, the complainant has miserably failed to prove the prior debt or financial liability. Apart from that, he has also failed to prove the execution and issue of cheque as held by this Court in the decision reported in Johnson Scaria's case (cited supra). Thus, going by the judgment of the trial court, it appears that the trial court has considered all the relevant aspects and came into a judicial conclusion and there is no case that the trial court has overlooked or failed to consider any material or evidence on record. In the decision reported in Ghurey Lal v. State of U.P. Crl.L.P.No. 36 of 2009 :-9-: [2008(4) KLT SN 17 (C.No.17) SC] , the Supreme Court laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the above decision, the Apex Court has categorically held that appellate court can interfere only for very substantial and compelling reasons with an order of acquittal. In the light of the above discussion, I find that there is no substantial and compelling reason to interfere with the order of acquittal and there is not even a remote scope to interfere with the order of acquittal even in case the appeal is entertained. Therefore, I am of the opinion that the petitioner has miserably failed to make out a case to grant the relief sought for in this petition and therefore, special leave is denied. In the result, the Crl.L.P. is dismissed. V.K.Mohanan, Judge MBS/ Crl.L.P.No. 36 of 2009 :-10-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T Crl.L.P.No. 36 of 2009 :-11-: DATED: -1-2009