IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 236 of 2002()
1. P.K.ARAVINDAN,PUTHANPURAKKAL NORTH,
... Petitioner
Vs
1. THULASIDAS NARAYANAPILLAI,
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.PHILIP MATHEW
For Respondent :SMT.K.V.RESHMI
The Hon'ble MR. Justice K.THANKAPPAN
Dated :31/05/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO.236 OF 2002
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Dated this the 31st day of May, 2007
JUDGMENT
This appeal is preferred by the complainant in C.C. No.391 of 1999
on the file of the Judicial First Class Magistrate’s Court, Kayamkulam.
The complaint was filed against the first respondent herein alleging
commission of offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
2. The case of the complainant – appellant was that the accused –
first respondent herein borrowed from him an amount of Rs.4,50,000/- in
two instalments and issued Exts.P1 and P2 cheques for Rs.2,25,000/- each
towards discharge of the said liability. The further case of the
complainant was that when Exts.P1 and P2 cheques were presented to the
bank for encashment, both the cheques were dishonoured on the ground of
insufficiency of funds in the account of the first respondent. On receipt of
intimation regarding dishonour of the cheques, the appellant issued
statutory notice to the first respondent who refused to accept the same.
Accordingly, the complaint was filed. To prove the case against the first
respondent, the appellant was examined as PW.1 and Exts.P1 to P6 were
CRL.APPEAL NO.236/2002 2
produced. On closing the evidence of the complainant, the accused
was questioned under Section 313 Cr.P.C. Denying the allegations in the
complaint, the accused stated that he had not borrowed any amount from
the appellant as alleged. At the same time, the first respondent had a case
that the cheques in question were given to the appellant as security for
some amount borrowed by one Chandran from the appellant. To prove the
case set up by the first respondent, he relied on Ext.D1 letter alleged to
have been issued by the appellant. After considering the entire evidence,
the trial court as per judgment dated 31.10.2001 acquitted the accused on
the ground that the appellant failed to prove the case against him. The
said judgment is challenged in this appeal.
3. This Court heard the learned counsel appearing for the appellant.
It is seen that the trial court acquitted the accused on the sole ground set up
by the first respondent that the cheques in question were issued by him as
security for the amount alleged to have been borrowed by one Chandran.
From the evidence now adduced by the appellant, it is not possible to
conclude that Ext.D1 relied on by the first respondent can be considered as
a piece of evidence to rebut the presumption available to the appellant
under Section 139 of the Negotiable Instruments Act. The first
respondent had admitted issuance of the cheques in question, but tried to
CRL.APPEAL NO.236/2002 3
prove that those cheques were issued as security for the amount borrowed
by one Chandran. There was no evidence before the court below to
conclude that Ext.D1 would prove that the cheques were issued as
suggested by the first respondent during cross-examination of the
appellant. The burden is on the first respondent to rebut the presumption
available in favour of the appellant under Section 139 of the Negotiable
Instruments Act. There is no circumstance or evidence to come to the
conclusion that the cheques in question were not issued as alleged in the
complaint.
4. In the above circumstances, this Court is of the view that the
judgment of the court below requires interference. Accordingly, the
impugned judgment is set aside and the matter is remanded to the court
below for fresh consideration. It is made clear that the parties shall be
allowed to adduce additional evidence, if any.
The Crl. Appeal is allowed by way of remand. The parties shall
appear before the court below on 21.7.2007.
(K.THANKAPPAN, JUDGE)
sp/
CRL.APPEAL NO.236/2002 4
K.THANKAPPAN, J.
CRL.APPEAL NO.236/2002
JUDGMENT
31ST MAY, 2007
CRL.APPEAL NO.236/2002 5