IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 Crl.L.P..No. 1022 of 2009() --------------------------- ST.137/2007 of J.M.F.C. - III, KOLLAM .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ K.SATHYA BABU, A.B.AGENCIES, KANNIMMEL C WARD, KANNANALLOOR ROAD, KILIKOLLOOR P.O., KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR SMT.SANDHYA RADHAKRISHNAN SMT.M.SRUTHY RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. D.SAJEEVAN, KALALIL THEKKATHIL, HOUSE NO.35, SURABHI NAGAR, AYATHIL P.O., KOLLAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.1022 of 2009 -------------------------------------------- Dated this the 9th day of August, 2011 ORDER The complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this Court u/s.378(4) of Cr.P.C. to file an appeal against the order of the trial court by which the learned Magistrate, in his complaint, acquitted the accused u/s.255(1) of Cr.P.C. 2. The case of the complainant is that, the accused issued Ext.P1 cheque, towards the repayment of an amount of Rs.45,000/- which was dishonoured, when presented for encashment and the accused has not repaid the amount, covered by the cheque, in spite of the receipt of statutory demand notice. Thus, according to the complainant, the accused has committed the offence punishable u/s.138 of the NI Act. With the above allegation, the appellant/complainant has approached the court of the Judicial Magistrate of First Class-III, Kollam by filing a complaint upon which cognizance was taken for the offence u/s.138 of the NI Act. During the trial, from the side of the complainant, himself was examined as PW1 and produced Ext.P1 to P8. No evidence is produced from the side of defence. The Crl. L.P.NO.1022 of 2009 2 trial court after considering the evidence and materials found that the accused is not in a position to challenge the authenticity of the cheque or signature contained therein, and it is further found that execution of Ext.P1 cheque is proved whereby presumption arise u/s.139 of NI Act that the cheque has issued by the accused to the complainant towards the existing civil liability. But on the basis of Ext.P7 and P8, the learned Magistrate has found that in the complaint, the one and only mention is about the non performance of the window work undertaken by the accused, but nothing mentioned about the loan transaction. Thus, the learned Magistrate it is further found that if the complainant has a case that accused has deceived him, it is unlikely that to the same man, a person of normal prudence would advance any amount. Thus, according to the learned Magistrate as per Ext.P7 and P8 itself, the presumption u/s. 139 of NI Act stands rebutted. Thus, the learned Magistrate has held that the complainant has miserably failed to prove that the accused has issued the cheque towards the discharge of a legally enforcible debt. It is the above finding and order of acquittal, propose to be challenged, by filing an appeal, for which the leave of this Court u/s.378(4) of Cr.P.C is sought for. 3. I have heard Sri.P.B.Suresh Kumar, learned counsel Crl. L.P.NO.1022 of 2009 3 appearing for the petitioner. I have also perused the judgment of the trial court. 4. The learned counsel for the petitioner vehemently submitted that the trial court has committed wrong in holding that the accused has rebutted the presumption on the basis of Ext.P7 and P8 documents. According to the learned counsel, accused has not adduced any evidence to rebut the presumption. whereas, the trial court has already found against the accused that the cheque in question was executed and issued by the accused. It is also the submission of the learned counsel that the non mentioning of the loan transaction between the complainant and the accused in Ext.P7 complaint is only because the basis of the fact that the complainant has already approached the Magistrate court to redress his grievance by filing the present complaint. Therefore, the findings of the learned Magistrate on the basis of Ext.P7, that the accused has rebutted the presumption is absolutely incorrect and the same is not factual and legally sustainable. 5. In the light of the above submission of the learned counsel and the findings of the learned Magistrate, the question to be considered is whether the petitioner has succeeded in making a case so as to grant special leave u/s.378(4) of Cr.P.C Crl. L.P.NO.1022 of 2009 4 especially, in the light of the facts and circumstances involved in this case. The specific case of the complainant is that the accused borrowed an amount of Rs.45,000/- and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 29.6.2002. But in Ext.P7, complaint preferred before the Police absolutely there is no mention regarding the loan transaction, which is the subject matter of the present complaint. The specific case of the accused is that there was no loan transaction between himself and the complainant and the cheque in question was connected with the work of fittings of windows, undertaken by the accused. It is true, that the learned Magistrate has found that Ext.P1 cheque is issued by the accused and there is no challenge against the authenticity of the cheque especially, when the signature put therein is not disputed. So according to the learned Magistrate, the complainant is entitled to get the presumption u/s.139 of the NI Act. Thus, though the learned Magistrate has further found that though the available evidence and facts are sufficient to draw the presumption u/s.139 of NI Act in favour of the complainant, Ext.P7 and P8 would shows that the defence has rebutted the presumption. It is true, that the defence had not adduced any evidence in discharging the burden of rebutting the Crl. L.P.NO.1022 of 2009 5 presumption. The Hon'ble Apex Court has held in Dattatraya's case (2008(1) KLT 425 (SC) in Krishna Janardhan Bhat v. Dattatraya Hedge) that the existence of legally recoverable debt is not a matter of presumption. It was also held that the accused for discharging the burden of rebutting the presumption he need not mount to the box, but he can discharge the burden, on the basis of materials already brought on record. Thus, it was further held that an accused has got constitutional right to maintain silence and the standard of proof on the part of an accused and that of the prosecution in a criminal case is entirely different. In the light of the above decision of the apex court, the prosecution has to prove the guilt of an accused beyond reasonable doubt but the standard of proof, required on the part of the accused is preponderance of probabilities. It was thus held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties, but also by reference to the attendant circumstance. In the present case, though the accused has not adduced any evidence, the very case put forward by the complainant himself is under shadow of doubt because even according to the complainant 45,000/- rupees was advanced to the accused when 4,000/- rupees was due even according to the complainant. Crl. L.P.NO.1022 of 2009 6 Under the above circumstances, it has to be examined the defect of the complainant in not pointing out the loan transaction in Ext.P7. So according to me, the learned Magistrate has perfectly justified in holding that the accused had succeeded in rebutting the presumption. In the light of the facts and circumstances in the case and particularly on the basis of Ext.P7, document. In such a circumstance, according to me, there is no scope for any interference with the above finding of the court below, even in case, an appeal is entertained. According to me, there is no compelling and substantial reasons to interfere with the order of acquittal and to reverse the same into a conviction. Hence, according to me, the petitioner is miserably failed to make out a case so as to grant leave of this Court u/s.378(4) of Cr.P.C. In the result, there is no merit in the leave petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/