High Court Kerala High Court

P.K.Aravindan vs Thulasidas Narayanapillai on 31 May, 2007

Kerala High Court
P.K.Aravindan vs Thulasidas Narayanapillai on 31 May, 2007
       

  

  

 
 
  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.

                          ----------------------------------------

                        CRL. APPEAL  NO.236  OF 2002

                          ----------------------------------------


                       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