The High Court dismissed the criminal appeal filed by a cheque holder seeking to overturn an acquittal. The accused rebutted the legal presumption of liability under Section 139 by proving the cheque was issued for a loan that was not authorized, successfully demonstrating the absence of a legally enforceable debt.
Appeal dismissed; order of acquittal maintained.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937
CRL.A.No. 813 of 2004 ( )
AGAINST THE JUDGMENT IN Crl.L.P. 299/2004 of HIGH COURT OF KERALA DATED 18-05-2004
AGAINST THE JUDGMENT IN CC 16/2003 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MANANTHAVADY DATED 16.03.2004
APPELLANT/COMPLAINANT::
P.K.PADMANABHAN, S/O KARUNAKARAN PUTHENPURAYIL HOUSE, VALERY P.O., EDAVAKA VILLAGE MANANTHAVADY.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/ACCUSED & STATE::
1. T.V.KOSHY CONDUCTOR, K.S.R.T.C., MANANTHAVADY.
2. STATE OF KERALA, REP. BY PUBLIC
R2 BY ADV.SURESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.D.RAJAN, J.
Crl. Appeal No.813 of 2004
Dated this the 19th day of January, 2016
JUDGMENT
Leave granted on 18.05.2004 in Crl.L.P.No.299/2004.
Crl.Appeal No.813/2004 2
Crl.Appeal No.813/2004
3
respondent borrowed a sum of Rupees Thirty thousand and at the time of borrowal, Ext.P1 and a stamp paper for Rupees Fifty thousand were entrusted to the appellant which is specifically mentioned in Ext.D1. Misappropriating that Ext.P1 cheque, foisted a false case.
Complaint under Section 138 must contain the following ingredients, viz., (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; (iii) cheque so issued had been returned due to insufficiency of funds.
Crl.Appeal No.813/2004 4
dishonour memo. Ext.P3 is the slip issued by NMG Bank. Appellant demanded the amount by giving a notice in writing. Ext.P4 is the lawyer notice. Ext.P5 is the postal receipt. Ext.P6 is the acknowledgement card. When cheque is dishonoured for the reason stated under Section 138 of the Negotiable Instruments Act, the presumption under Section 139 can be drawn in favour of the holder of the cheque.
reads as follows:
"Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
The Apex Court in Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145] held that under Section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who drew the cheque.
Crl.Appeal No.813/2004 5
The aforesaid presumption is in favour of the holder of cheque. It is not mentioned in the Section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should advance evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption.
Crl.Appeal No.813/2004
6
Instruments Act was properly discharged. Therefore, accused discharged his initial burden and rebutted the presumption and the trial court acquitted the accused.
I find no illegality in the above finding of the court below. Appellant failed to prove that Ext.P1 was issued in discharge of a debt or liability. There is no illegality in the finding. No merit in this appeal and the same is dismissed accordingly.
JV
sd/P.D.RAJAN JUDGE
//true copy//
P.A. to Judge
2 issues framed by the court
Whether the appellant discharged the burden of proof to rebut the presumption under Section 139 of the Negotiable Instruments Act.
Whether the acquittal of the accused is sustainable on the evidence adduced by the accused.
Colour shows how this judgement treated each authority
Krishna Janardhan Bhat v. Dattatraya G. HegdeReferred¶30
Krishna Janardhan Bhat v.Dattatraya G. Hegde, [2008 (4) SCC 54] · Who else cites this
Anil Hada v. Indian Acrylic Ltd.Relied on¶38
Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145] · Who else cites this
Narayana Menon v. State of KeralaReferred¶39
Narayana Menon v. State of Kerala [2006 (3) KLT 404 SC]
2 provisions across 1 enactments
P.K. PADMANABHAN
T.V. KOSHY
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
