IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 865 of 2001()
1. SAJEEV
... Petitioner
Vs
1. JAYAKUMAR.P.K.
... Respondent
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.J.OM PRAKASH
The Hon'ble MR. Justice V.K.MOHANAN
Dated :29/09/2008
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 865 of 2001 - C
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Dated this the 29th day of September, 2008
J U D G M E N T
This appeal arises at the instance of the
complainant against the judgment dated 28.3.2001 in
C.C.No.369 of 1998 of the Judicial First Class Magistrate
Court-II, Cherthala by which the court below acquitted the
first respondent/accused under Section 255(1) of Cr.P.C.
2. On the allegation that the complainant had
advanced a sum of Rs.74,000/- to the accused and towards
the said liability, the accused had issued the cheque in
question for an amount of Rs.74,000/- and when the
complainant presented the same for encashment, it was
dishonoured for want of insufficient fund in the account
maintained by the accused. Consequently, it is claimed
that he had caused to send a notice to the accused, but he
did not care to issue any reply and hence, he preferred the
complaint for prosecuting the accused under Section 138
of the Negotiable Instruments Act. The court below took
cognizance upon the above complaint and instituted
C.C.No.369 of 1998 and when the accused appeared, the
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particulars were read over to him to which he pleaded
not guilty which resulted in further trial during which
the complainant himself was examined as PW1 and
produced Exts.P1 to P7 as documentary evidence from
his side. From the side of the defence, though no
documentary evidence was adduced, DW1 was
examined. The trial court, based upon the contentions
advanced by the parties and materials, framed two
issues for its consideration. Finally, the court below
found that there is no bona fide in the complaint and the
complainant has failed to establish that the accused
issued Ext.P1 cheque towards the discharge of legal
debt, which is due towards the complainant and thus,
the accused is found not guilty and accordingly, he is
acquitted under Section 255(1) of Cr.P.C. It is the above
order of acquittal which is challenged in this appeal.
3. I have heard Mr.T.H.Abdul Azeez, learned
counsel appearing for the appellant and also Mr.J.Om
Prakash, learned counsel appearing for the first
respondent.
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4. Learned counsel for the appellant submits
that the finding arrived on by the court below is wrong
and when the accused admitted the issuance of cheque,
the presumption under Section 139 of the N.I.Act is in
favour of the complainant and he need not further
establish the liability due from the accused to the
complainant. On the strength of the decision reported in
General Auto Sales v. Vijayalakshmi [2005(1) KLT
478], counsel submits that the bounced cheque given by
guarantor comes within the fold of Section 138. So,
according to counsel for the appellant, as and when the
cheque in question was admittedly issued by the
accused, the presumption will be in favour of the
holder/complainant and therefore, the finding of the
court below is illegal.
5. Per contra, counsel for the respondents
submits that the consistent defence taken by the
accused is to the effect that he had received only an
amount of Rs.10,000/- from the complainant and there is
no financial liability more than the amount so admitted
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and therefore, no cheque for an amount of Rs.74,000/-
was issued to the complainant as claimed by him and
therefore, in the absence of any legally recoverable debt
due to the complainant, no liability under Section 138
can be fixed against the accused, counsel for the first
respondent submits. Thus, counsel for the first
respondent, supporting the judgment of the court below,
submits that no interference of this Court is warranted
in view of the facts and circumstances involved in the
case.
6. I have carefully considered the contentions
advanced by learned counsel and also perused the
materials available. As pointed out earlier, the case of
the complainant is that on demand from the side of the
accused, he had advanced a sum of Rs.74,000/- and
towards the discharge of the said debt, the first
respondent/accused issued the cheque in question.
During his examination as a witness, the complainant
gave oral evidence regarding the source of money which
he gave to the accused. He had also admitted that
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altogether there were four cases and also claimed that
certain persons witnessed the transaction. But, during
trial, apart from his deposition, no other materials are
brought to the notice of the court to substantiate the
alleged transaction between the complainant and the
accused.
7. The court below had held that the accused
had succeeded in discharging his burden to rebut the
presumption in favour of the complainant under Section
139 of the Negotiable Instruments Act, 1881. One of the
grounds noticed by the court below for the above
conclusion is that the complainant failed to mention the
actual date of transaction in the complaint. In
paragraph 12 of the judgment, the court below shows
that the accused had made an attempt to establish the
defence story during his 313 statement and it is further
stated that the accused has proved his case for rebutting
the presumption under Section 139 of the N.I.Act. But,
there is no elaborate discussion on this aspect.
8. In Krishna Janardhan Bhat v. Dattatraya
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Hegde [2008(1) KLT 425 (SC)], the Apex Court had
held that Section 139 of the Act merely raises a
presumption with regard to the second aspect of the
matter and existence of legally recoverable debt is not a
matter of presumption under Section 139 of the Act. It
was further held that it merely raised a presumption in
favour of a holder of the cheque and the same had been
issued for discharge of any debt or other liability. But, it
was observed therein that the courts below proceeded
on the basis that Section 139 raises a presumption with
regard to the existence of a debt also.
9. In the very same decision, the Apex Court had
held that an accused, for discharging burden of proof,
placed upon him under a statute need not examine
himself and he may discharge his burden on the basis of
materials already brought on records. It was also held
that where chances of false implication cannot be ruled
out, background fact and conduct of parties together
with their legal requirements are required to be taken
into account. In the particular facts and circumstances
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involved in the case, it can be seen that the accused has
also admitted transaction between himself and the
complainant, but his dispute is with respect to the
limitation of his financial liability. According to him, he
had borrowed only Rs.10,000/- whereas according to the
complainant, he had borrowed a sum of Rs.74,000/-.
Regarding this aspect, there is no concrete evidence.
The complainant though had averred in the complaint
that he had advanced a sum of Rs.74,000/- to the first
respondent/accused, there are no details regarding the
transaction and supporting evidence. Though the
complainant had stated that the transaction was
witnessed by certain other persons, they were not
examined. It is also stated by him during the
examination that the cheque in question was duly filled
by the accused and he had put his signature before the
complainant. The above claim is not seen substantiated
by sufficient evidences. Though the trial court in the
impugned judgment had stated that the accused had
rebutted the presumption under Section 139, there is no
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discussion on this aspect. Of course, as pointed out in
the decision of the Apex Court cited supra, the accused
need not himself examine in the box for the discharge of
his burden to rebut the presumption, but there must be
some material to substantiate his claim. He admits that
he had received only Rs.10,000/-, for which also there is
no other material. Therefore, mere suggestion,
especially in the particular facts and circumstances
involved in the case, is not sufficient to make out a
probable case. Hence, it cannot be held that the defence
has succeeded in probabilising a defence case. So,
considering the totality of the facts and circumstances
involved in the case, I am of the opinion that the court
can come into a fresh decision based upon the materials
to be adduced before it, in case the matter is sent back
to the same court for consideration.
10. In the light of the above discussion and the
facts and circumstances involved in the case and in view
of the decision of the Apex Court mentioned above, it
will be just and proper to remit the matter for fresh
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consideration of the court below, with opportunity to the
parties to adduce fresh evidence, if so, they are advised.
Thus, for enabling the court to take a fresh decision, the
impugned order is set aside and the matter is remitted
back for fresh consideration and the parties are at
liberty to adduce evidence. The parties are directed to
appear before the court below on 31.10.2008 on which
date the court is directed to take up the complaint on file
and to proceed in accordance with law and dispose of
the same, as expeditiously as possible.
This Criminal Appeal is disposed of as above.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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Crl.A.NO.865 OF 2001
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J U D G M E N T
DATED: 29-9-2008
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