IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.L.P..No. 36 of 2009()
1. SHAJI MARNADIYAN, S/O.N.KORAN,
... Petitioner
Vs
1. T.SUBRAHMANIAN, M.S.HAIR CUTTING CENTRE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.VIJU ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :06/02/2009
O R D E R
V.K.MOHANAN, J.
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Crl.L.P.No. 36 of 2009
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Dated this the 6th day of February, 2009
J U D G M E N T
Having failed in a prosecution for the offence
under Section 138 of the Negotiable Instruments Act (for short
‘the N.I.Act’), the petitioner/complainant approached this court
by filing the present petition seeking special leave to prefer an
appeal against the order of acquittal passed by the court
below under Section 255(1) of Cr.P.C., an order in favour of
the accused who faced the trial under Section 138 of the
N.I.Act.
2. The case of the petitioner/complainant is that the
accused issued a cheque bearing No.17573 to discharge the
debt for Rs.80,000/- to the complainant and when the same
was presented for encashment, it was returned with a memo
stating ‘funds insufficient’. Consequently, at the instance of
the petitioner/complainant, a lawyer notice was sent and
though the same was received by the accused, no reply was
given and no amount was paid. Hence, the complainant
approached the court below by filing a complaint for the said
offence. On the basis of the sworn statement of the
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complainant and the averments in the complaint, the case was
received on file as S.T.C.No.3331 of 2005 in the court of the
Judicial First Class Magistrate, Taliparamba. When the accused
appeared, the particulars of the allegations were read over and
explained to him to which he pleaded not guilty which resulted in
further trial during which the complainant himself was examined
as PW1 and Exts.P1 to P5 were marked from his side. No
evidence either documentary or oral is adduced by the defence.
On the basis of the pleadings, appropriate issues were framed
and the court finally found that the complainant had not
succeeded in proving the drawal of the cheque by the accused in
favour of him and so it couldnot be presumed that the cheque is
drawn by the accused for discharge of debt or liability. Thus,
according to the court below, mere possession is not sufficient to
launch a complaint under Section 138 of the N.I.Act and it was
concluded that the accused is not guilty and accordingly he is
acquitted. It is the above finding and order of acquittal sought to
be challenged by preferring an appeal for which leave of this
Court is sought for in this petition.
3. I have heard Sri.Viju Abraham, learned counsel
appearing for the petitioner. Learned counsel submits that the
complainant has, by filing proof affidavit as well as by adducing
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oral evidence, proved that the accused issued the cheque and
therefore, the presumption under Section 139 is available in
favour of the complainant which the trial court failed to take note
of. It is also the case of counsel that when the statutory
presumption is available in favour of the complainant, especially
when the defence did not adduce any evidence, it cannot be said
that the accused has rebutted the presumption. Thus, according
to the learned counsel, the order of the court below is liable to be
interfered with.
4. I have repeatedly perused the judgment of the trial
court which is sought to be impugned. Learned counsel also
made available to me the proof affidavit as well as the deposition
of PW1. There is no averment either in the complaint or in the
proof affidavit regarding the details of the debt or financial liability
which is due to the complainant from the side of the accused. In
the proof affidavit as well as in the complaint, it is stated that the
accused borrowed a sum of Rs.80,000/- for which he issued the
cheque in question. There are no details regarding the
circumstances under which the accused demanded the amount
from the complainant and other details. Only during the cross-
examination, the complainant has stated that the accused is
conducting a barber shop very near to the Mavila Paints and he
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had acquaintance with the accused for the last 5 to 8 years as he
was also working in the shop named as Mavila Paints, Pilathara.
It is also his case, during cross-examination that the barber shop
of the accused is very close to the Mavila Paints. On the basis
of the above facts stated or admitted by the complainant, the trial
court posed a question as to why PW1 stated that the transaction
is made at Taliparamba. According to PW1, he is residing at
Kuttoor and from Kuttoor, he came to Pilathara and then came to
Taliparamba and thereafter, he had called the accused to
Taliparamba and given the amount to the accused in a hotel at
Taliparamba. According to PW1, his explanation is that his
brother is residing at Taliparamba. His further explanation is that
in order to make up the deficiency of the required amount, he
came to Taliparamba and borrowed the remaining amount from
his brother. Then, it was given to the accused. It is also stated
by PW1 that the accused had handed over the cheque to him
from Taliparamba. It is claimed by the complainant/PW1 that the
accused had informed him that he would get the amount from
Taliparamba and will return to him. Thus, when he reached at
Taliparamba, the accused had given a cheque to him. The above
explanation offered by PW1 is not acceptable to the court below,
who got an opportunity to observe the demeanour of PW1.
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5. The trial court has also found that PW1 had admitted
that the accused is hailing from Tamil Nadu and the cheque was
brought after filling it. According to PW1, the accused had put his
signature at the front bottom side of the cheque alone. He had
particularly and categorically stated that accused has not put his
signature in any other part of the cheque. It is also the case of
PW1 that the accused had written his name in Malayalam and
thereafter, put his signature in the cheque. The trial court found
that the cheque in question contained the signature on both
sides. It is also observed by the trial court that the name is seen
written in English, thereafter, he put his signature. The
contention of the accused is that the accused does not know
Malayalam either to read or to write. After analysis of the above
evidence especially in the light of the version given by the
accused, the trial court found that the complainant is not the
holder of the cheque. Thus, according to the trial court, there is
no cogent and convincing evidence to prove that Ext.P1 cheque
is drawn by the accused in favour of the complainant. Thus, the
trial court further held that it cannot be said that the accused had
drawn the cheque in favour of the complainant to discharge any
debt or liability.
6. Going by the judgment, it can be seen that the case
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put up by the defence is to the effect that the present complainant
is the binami of one Mavila Damodaran. PW1 has admitted that
he is the Salesman in Mavila Paints, Pilathara. The case
suggested by the defence is that the cheque in question was
given to Damodaran and the same was misused for filing a
complaint by the complainant or the complainant preferred the
complaint as a binami of the said Damodaran. The trial court
after considering the evidence on record came to the conclusion
that the complainant failed to prove that the cheque in question
was executed in favour of the complainant.
7. Learned counsel for the petitioner submits that as
and when the complainant is the holder of the cheque in question
and the signature contained in the same is not disputed by the
defence and especially, when no positive evidence is adduced
from the side of the defence, the approach of the court below is
arbitrary and illegal and therefore, the finding is liable to be set
aside. On the basis of Section 139 of the N.I.Act, the learned
counsel submits that the presumption is in favour of the
complainant and the complainant has established a prima facie
case to avail such presumption. Therefore, in the absence of the
rebuttal of the presumption, the trial court ought to have accepted
the case as such and instead of acquitting the accused, he
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should have been convicted, learned counsel submits.
8. As I have already observed and indicated above,
there is no positive averment in the complaint regarding the debt
or liability and the circumstances and details which led to the
alleged borrowal of the amount by the accused from the
complainant and absolutely, no evidence is also adduced in this
regard. 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 very
same decision, the Apex Court has further held that the accused
for discharging the burden of proof placed upon him under a
statute need not examine himself but he may discharge burden
on the basis of materials already brought on record. It is also
held that furthermore, 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’. In that juncture, the Apex Court
has held that inference of preponderance of probabilities can be
drawn not only from the materials brought on record by the
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parties but also by reference to the circumstances upon which he
relies. This Court in a decision reported in Johnson Scaria v.
State of Kerala [2006(4) KLT 290] has held that admission of
signature in a cheque goes a long way to prove due execution
and possession of the cheque by the complainant similarly goes
a long way to prove issue of the cheque. The burden rests on the
complainant to prove execution and issue. It is also held in the
same decision that under Section 114 of the Evidence Act,
appropriate inferences and presumptions can be drawn in each
case on the question of execution and issue of the cheque
depending on the evidence available and explanations offered.
In the present case, as held by the Apex Court in the decision
cited supra, the complainant has miserably failed to prove the
prior debt or financial liability. Apart from that, he has also failed
to prove the execution and issue of cheque as held by this Court
in the decision reported in Johnson Scaria’s case (cited supra).
Thus, going by the judgment of the trial court, it appears that the
trial court has considered all the relevant aspects and came into
a judicial conclusion and there is no case that the trial court has
overlooked or failed to consider any material or evidence on
record. In the decision reported in Ghurey Lal v. State of U.P.
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[2008(4) KLT SN 17 (C.No.17) SC] , the Supreme Court laid
down certain circumstances under which the appellate court can
interfere with the order of acquittal. In the above decision, the
Apex Court has categorically held that appellate court can
interfere only for very substantial and compelling reasons with an
order of acquittal.
In the light of the above discussion, I find that there is
no substantial and compelling reason to interfere with the order of
acquittal and there is not even a remote scope to interfere with
the order of acquittal even in case the appeal is entertained.
Therefore, I am of the opinion that the petitioner has miserably
failed to make out a case to grant the relief sought for in this
petition and therefore, special leave is denied.
In the result, the Crl.L.P. is dismissed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, JJ.
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Crl.A.NO. OF 200
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J U D G M E N T
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DATED: -1-2009