IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1585 of 2003()
1. REMADEVI, D/O.MALLAKSHIAMMA,
... Petitioner
Vs
1. VIMALA, D/O.PADMAKSHI, GEETHA VILASOM,
... Respondent
2. THE STATE OF KERALA REP. BY
For Petitioner :SRI.C.R.SIVAKUMAR
For Respondent :SRI.VARGHESE C.KURIAKOSE
The Hon'ble MR. Justice V.K.MOHANAN
Dated :17/03/2009
O R D E R
V.K.MOHANAN, J.
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CRL.A. No.1585 of 2003
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Dated, 17th March, 2009.
JUDGMENT
This is an appeal preferred by the complainant in a
prosecution for the offence punishable under section 138
of the Negotiable Instruments Act as she is aggrieved by
the order of acquittal passed by the trial court acquitting
the accused under section 255(1) of Cr.P.C.
2. The case of the complainant was that the
accused borrowed a sum of Rs.75,000/- from the
complainant and when demanded the amount back,
accused issued a cheque for the said amount and the
cheque when presented for encashment, it was
dishonoured for the reason “funds insufficient”.
Thereafter the complainant caused to send a statutory
notice stating the dishonour of the cheque and
demanding for the payment of the amount covered by
the dishonoured cheque. As no payment was made, the
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complainant approached the court below by preferring the
complaint whereupon C.C.No.8/2000 was instituted. When
the accused appeared, particulars of the offence were read
over and explained to her and she pleaded not guilty.
Thereafter the complainant herself was examined as PW1
and produced Exts.P1 to P5. The accused herself mounted
to the box and examined herself as DW1 and one more
witness was examined from the side of the defence.
Besides the above oral evidence, Ext.D1 pass book was
produced as defence exhibit. The defence set up by the
accused is to the effect that the complainant was an
employ of the shop run by the accused and when the
business was stopped, she paid Rs.3000/- each to the
other employees and though she was willing to pay
Rs.5000/- to PW1, she was not amenable for the same. It
is also her case that when she vacated the premises,
where the shop was running, the landlord paid her a sum of
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Rs.5,00,000/- and at the alleged time of availing loan by
the accused from the complainant, she was having
sufficient fund and there is no necessity for her to borrow
money from the complainant. Thus the trial court, based
upon the rival pleadings and materials on record,
formulated 5 issues for its consideration. The first issue
was, ”whether the accused issued Ext.P1 cheque to the
complainant in discharge of a legally enforceable debt or
other liability?” Though the findings under other points
are in favour of the complainant, the finding under point
No.1 was in favour of the accused and the trial court
concluded that the complainant failed to establish that
Ext.P1 cheque was issued by the accused to the
complainant in discharge of a legally enforceable debt.
Accordingly the trial court found that the accused is not
guilty of the offence for which she is charged and
accordingly, she is acquitted. It is the above finding and
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order of acquittal challenged in this appeal.
3. I have heard the learned counsel appearing for
both the appellants as well as the respondent.
4. The learned counsel for the appellant submitted
that the learned Magistrate overlooked the evidence
adduced by the complainant as PW1. It is also argued that
the trial court, without any basis, simply believed the
concocted story of defence. The learned counsel pointed
out that the accused miserably failed to issue a stop memo
to her bank in case of the cheque was fraudulently
obtained by the complainant. The accused has also failed
to make any complaint before the police or before any
other appropriate authority. But without considering these
aspects, the trial court simply believing the deposition of
DWs 1 and 2, acquitted the accused. It is also argued that
the accused failed to send any reply to the notice sent by
the complainant and such act of the accused is sufficient
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to draw presumption that the accused had admitted the
transaction. It is the case of the learned counsel that
though PW1 has stated that after 10.11.99, she had not
gone to the shop of the accused, it does not mean that
there was no liability from the accused to the complainant.
It is also pointed out that the version given by DWs 1 and
2 are conflicting in nature and, therefore, the learned
Magistrate has committed a wrong in accepting those
evidence. Therefore, it is argued that the trial court
ought to have convicted the accused and therefore this
Court be interfered with the order of acquittal passed by
the trial court and reverse the order of acquittal to an
order of conviction and appropriate sentence may be
imposed against the respondent/accused.
5. On the other hand, the learned counsel appearing
for the respondent submitted that the complainant has
miserably failed to establish the transaction, execution and
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issuance of the cheque and therefore, the complainant is
not entitled to get the presumption as provided under
section 139 of the Act. It is further submitted that though
the complainant has failed to discharge the initial burden,
so as to avail the presumption under section 139 and the
same is not available to the complainant in the present
case, the accused has succeeded in making out a probable
case and thereby rebutted the presumption. According to
the learned counsel, the trial court, after considering the
entire materials and evidence on record, came into a
correct decision and thereby acquitted the accused and
hence no interference is warranted.
6. I have carefully considered the arguments
advanced by both the counsels and also perused the
materials and evidence on record. The specific allegation
of the complainant is that the accused borrowed a sum of
Rs.75,000/- and when demanded back, the accused
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issued a cheque for the said amount showing the date as
22.11.99. There is no factual averments in the complaint
as to when the accused demanded the amount and the
purpose for availing the loan and also on which date the
amount was given to the accused. It is also clear from the
averment that the period of loan is conspicuously absent.
It is not stated when the amount was demanded back. But
when PW1 was examined, it is stated that the loan was
availed on 21.10.99. During her cross examination, she
had admitted that the accused was running a coffee and
curry powder shop and the complainant used to purchase
coffee powder from there. According to her, it was on
10.11.99 as the last date on which she purchased coffee
powder. It is also stated that after 10.11.99, she had gone
to the shop of the accused for demanding the money. In
this juncture, it has to be noted that the specific defence
set up by the accused is to the effect that the complainant
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was one of her employees and when the business was
stopped, she paid Rs.3000/- to each of the employees and
she was willing to pay Rs.5000/- to the complainant, but
she was not amenable for such settlement. By producing
Ext.D1 pass book, the accused substantiated the fact that
on 29.10.99 she had deposited a sum of Rs.3,50,000/- with
Santhosh financiers. So According to DW1, on the date of
the alleged borrowal of loan, actually there was no financial
stringency for the accused to borrow such amount and she
was financially in good condition. It is also proved that she
had received a sum of Rs. 5,00,000/- from the landlord for
vacating the premises prior to 29.10.99. PW1 had also
admitted that the accused had received a sum of Rs.5
lakhs from the landlord. It was also admitted by PW1
during the cross examination that :
curry powder .
.
.
. SSR Textiles
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,
. 5
. 1999 – .
”.
So from the above admission of the complainant it is
crystal clear that before the alleged borrowal of the
amount from the complainant, the accused had got Rs.5
lakhs from her landlord for vacating the shop premises and
if that be so, there was no financial stringency for the
accused so as to avail a sum of R.75,000/- from the
complainant. It is also discernible on a perusal of the
complaint that the complainant had no specific case as to
why the accused borrowed the amount and when was the
amount borrowed, what was the period of loan and what
was the due date of repayment of the loan etc. The trial
court found that regrading the execution of the cheque,
there is no consistent version supported by any cogent
evidence.
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7. The accused by examining herself as DW1 and on
examining another witness as DW2 and on producing
Ext.D1 pass book, it is established that at the alleged time
of the borrowal of loan, there was no necessity for the
accused to take such a loan. The above factum is
substantiated through clear and cogent evidence. DW2 is a
social worker who deposed before the court below about
the offer of the accused for paying Rs.5000/- to PW1.
Thus the accused has succeeded in establishing the
suggestion for paying compensation to PW1, connected
with the dispute between herself and the complainant. In
the complaint, the complainant has not stated anything
about the coffee powder business of the accused and the
purchase of coffee powder by the complainant from the
said shop. Those facts were admitted by the complainant
only when she was subjected to severe cross examination.
It is under the above circumstances, the trial court found
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that the accused has succeeded in establishing a probable
case.
8. 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 present case, even the
pleadings in the complaint is not sufficient to show that
there was an existing debt or liability. In the same
decision, the Apex Court has held that “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’. Inference of
preponderance of probabilities can be drawn not only from the
materials brought on records by the parties but also by
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reference to the circumstances upon which he relies”. In the
present case, by examining DW1 and DW2 and producing Ext,D1
document, the defence has succeeded in establishing a probable
case. Going by the above evidence of the defence, I am of the view
that the defence had succeeded in establishing a probable case
and as rightly held by the trial court, the accused had succeeded in
rebutting the presumption under section 139 of the N.I.Act.
9. On application of the dictum laid down by the Hon’ble
Supreme court in the decision in reported in M/s. Kumar Exports
v. M/s. Sharma Carpets ( 2009 (1) Supreme 231), it can be seen
that the accused had discharged her burden of rebutting the
presumption not only by adducing the defence evidence, but also
on the basis of the presumption of fact and other circumstances
which I discussed earlier. Therefore , I find no reason to interfere
with the finding arrived on by the court below and accordingly, the
finding so arrived by the court below is confirmed.
10. In the decision reported in Bactu Venkateshwarlu and
Ors, v. Public Prosecutor H.C. of A.P. (2009(1) Supreme 67), the
Apex Court has held that in a case of acquittal, there is a double
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presumption in favour of the accused and there mus be substantial
and compelling reasons for holding that the trial court was wrong.
Unless such finding, the appellate court cannot interfere with the
order of acquittal in exercise of its appellate jurisdiction. In the
light of the above discussion and the materials and evidence
referred above, I find no reason to hold that the finding of the trial
court is wrong and hence there is no scope for interference with the
order of acquittal.
In the result, there is no merit in the appeal and accordingly,
the same is dismissed.
V.K.MOHANAN, JUDGE
kvm/-
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V.K.MOHANAN, J.
No….
Judgment/Order
Dated: