Court : SC
Brief : It is now well settled when two views are possible, the High Court
while exercising its appellate power against a judgment of acquittal, shall
not ordinarily interfere therewith. [See V. Venkata Subbarao v. State
represented by Inspector of Police, A.P. \026 2006 (14) SCALE 125].
Citation : --
CASE NO.:
Appeal (crl.) 233 of 2007
PETITIONER:
Kamala S
RESPONDENT:
Vidyadharan M.J. & Anr
DATE OF JUDGMENT: 20/02/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P. (Crl.) No. 3410 of 2006]
S.B. Sinha, J.
Leave granted.
Appellant herein was charged with commission of an offence under
Section 138 of the Negotiable Instruments Act, 1881 (for short, ’the Act’)
on the premise that a cheque issued by her on 05.09.1997 for a sum of Rs. 1
lakh drawn in favour of the respondent herein, when presented, was
dishonoured for the reason "funds insufficient". A legal notice was sent to
her, but despite the receipt thereof, she had not repaid the said amount.
Before the learned Trial Judge, a defence was raised by the appellant
herein that the cheque in question was not drawn in discharge of any debt or
security but in fact was drawn for payment of a balance consideration for
sale of a property in her favour by the wife of the respondent.
According to the appellant, Smt. Sathyabhama owned a property
bearing old Survey No. 1363/3-1-1 measuring an area of 47 cents. She had
executed two Sale Deeds, one in favour of Mr. Ramchandran Nair and
another in favour of Thankamony conveying to them 20 cents and 27 cents
respectively. The Sale Deeds were allegedly executed in favour of the
aforementioned persons as a security in lieu of some amount paid in her
favour. However, when the Thankamony and Ramchandran Nair demanded
the money back from the wife of the respondent, the appellant was
approached for purchase of the said property for a consideration of Rs. 5
lakhs. On 05.09.1997, the said Thankmony executed a Deed for Sale in
favour of the appellant wherefor she had withdrawn a sum of Rs. 4 lakhs
from bank. The said amount was paid to Sathyabhama which in turn was
paid to Thankamony and Ramchandran Nair. However, as there was a
dispute in regard to the exact area of the property and measurement therefor
had not been taken, she had given a cheque to Sathyabhama in the name of
her husband as demanded by Sathyabhama on an understanding that the
consideration shall be reduced if the area found in the Sale Deed is found
short. As upon measurement, the area of the property conveyed in his
favour was found to be short by 4 cents, the appellant paid a sum of Rs.
20,000/- to the respondent on 27.11.1997. Allegedly, however the
respondent had asked for a sum of Rs. 10,000/- more from the appellant, but
a sum of Rs. 5,000/- was only given to him on 18.12.1997 towards full and
final settlement thereof and in that view of the matter no further amount was
due for her.
However, despite the same, a cheque was produced before a bank
which, as noticed hereinbefore, was dishonoured.
A complaint petition was filed thereafter on the allegation that the
appellant had borrowed a sum of Rs. 1 lakh from the respondent for
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purchasing a house and the same was to be repaid within a period of 5
months.
The learned Trial Judge considered the evidence adduced on behalf of
the complainant and found the defence of the appellant to be a probable one
and having regard to the facts and circumstances of this case, held that the
presumption raised under Section 142 of the Act stood discharged and the
complainant failed to discharge the onus placed on him stating :
"\005This also suggests that Ext. P2 may be a signed
blank cheque issued by the accused to PW1 as a
security. Thus the facts and circumstances discussed
above leads one to the conclusion that the defence set
up by accused that he had issued a signed blank
cheque as a security along with Ext. P1 agreement and
Ext. P2 is that cheque he had issued is probable. The
circumstances discussed above are badly damaging
the prosecution case and they are sufficient to displace
the presumptions available to the complainant. These
circumstances in fact corroborates PW1 to show the
reasonable possibility of the non existence of the
presumed fact. The accused need not prove his
defence case beyond reasonable doubt. Here the
evidence tendered by DW1 together with the
circumstances discussed above is seen sufficient to
rebut the presumptions. Now the burden again shifts
to the complainant and he is to prove by independent
positive evidence the most material fact of existence
of debt of the accused. The complainant had not
produced sufficient evidence to prove his case beyond
reasonable doubt, without the help of the
presumptions\005"
On the said finding, the learned Trial Judge recorded a judgment of
acquittal. On an appeal preferred by the respondent herein thereagainst, the
High Court, however, reversed the said finding, opining that the appellant
had not been able to discharge the burden of proof laid down under Sections
138 and 139 of the Act, which read as under :
"138. Dishonour of cheque for insufficiency, etc., of
funds in the account.\027Where any cheque drawn by a
person on an account maintained by him with a banker
for payment of any amount of money to another person
from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank
unpaid, either because of the amount of money standing
to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with that bank,
such person shall be deemed to have committed an
offence and shall, without prejudice to any other
provision of this Act, be punished with imprisonment for
a term which may extend to two years, or with fine which
may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall
apply unless\027
(a) the cheque has been presented to the bank within
a period of six months from the date on which
it is drawn or within the period of its validity,
whichever is earlier.
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand
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for the payment of the said amount of money
by giving a notice, in writing, to the drawer of the
cheque, within thirty days of the receipt of
information by him from the bank regarding the
return of the cheque as unpaid, and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of
the said notice.
Explanation.\027For the purposes of this section, "debt or
other liability" means a legally enforceable debt or other
liability."
"139. Presumption in favour of holder.\027It 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, or
any debt or other liability."
The High Court in arriving at the said conclusion, although accepted
that the Sale Deeds had been executed in favour of the appellant herein, but
despite the fact that the defence witnesses had fully supported her statement,
who also examined herself as DW-1, held "There is no explanation for nonmentioning
of the same" in the reply to the notice which had been served on
her by the respondent.
On the aforementioned finding, the appellant was sentenced to
imprisonment till rising of the Court and pay compensation of a sum of Rs.
1 lakh to the complainant in terms of Section 357(3) of the Code of Criminal
Procedure; and in default thereof to undergo simple imprisonment for 6
months.
Mr. K.V. Viswanathan, the learned counsel appearing on behalf of the
appellant, would submit that the High Court committed a manifest error in
passing the impugned judgment, inasmuch as the learned Trial Judge
keeping in view the entire materials on records had arrived at an opinion that
the burden had fully been discharged by the appellant, and, thus, could not
have reversed the said finding as the said defence was a probable one.
Mr. Rajeev, learned counsel appearing on behalf of the respondent,
on the other hand, would draw our attention to a declaration made by the
appellant herein contained in Annexure R-1, which is in the following
terms :
"I, Sukumaran Kamala at Baiju Bhawanam in
Puthoor Mukku, Kadavoor Desom in Kadavoor Village
hereby execute this agreement on 05.09.1997 (Nineteen
Ninety Seven September five) and given to Vidhyadharan
s/o Kunhikrishnan at Vidhyamandiram, at Error Amsom
Desam in Eroor Village.
I have obtained from you Rs. One lakh for the
purpose of purchasing a property. I hereby undertake that
I will repay Rs. One lakh within five months from this
date. If I fail to repay Rs. One lakh within the due date
you are entitled to this amount along with interest from
such date and that you can realize from my properties.
All the above stipulations have written with my
full knowledge and consent and signed."
The learned counsel would contend that keeping in view the fact that
in terms of the said document a cheque was drawn by the appellant herein
within a period of 5 months from 05.09.1997, a presumption in terms of
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Section 139 of the Act was correctly raised by the High Court.
It was submitted that even if the defence raised by the appellant herein
was true, she has failed to offer any explanation as to why the cheque had to
be issued.
The Act contains provisions raising presumption as regards the
negotiable instruments under Section 118(a) of the Act as also under Section
139 thereof. The said presumptions are rebuttable ones. Whether
presumption stood rebutted or not would depend upon the facts and
circumstances of each case.
The nature and extent of such presumption came up for consideration
before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala
and Anr. [(2006) 6 SCC 39] wherein it was held :
"30. Applying the said definitions of "proved" or
"disproved" to the principle behind Section 118(a) of the
Act, the court shall presume a negotiable instrument to be
for consideration unless and until after considering the
matter before it, it either believes that the consideration
does not exist or considers the non-existence of the
consideration so probable that a prudent man ought,
under the circumstances of the particular case, to act
upon the supposition that the consideration dos not exist.
For rebutting such presumption, what is needed is to raise
a probable defence. Even for the said purpose, the
evidence adduced on behalf of the complainant could be
relied upon."
This Court clearly laid down the law that standard of proof in
discharge of the burden in terms of Section 139 of the Act being of
preponderance of a probability, the inference therefor can be drawn not only
from the materials brought on record but also from the reference to the
circumstances upon which the accused relies upon. Categorically stating
that the burden of proof on accused is not as high as that of the prosecution,
it was held;
"33. Presumption drawn under a statute has only an
evidentiary value. Presumptions are raised in terms of
the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another."
It was further observed that ;
" 38. If for the purpose of a civil litigation, the defendant
may not adduce any evidence to discharge the initial
burden placed on him, a "fortiori" even an accused need
not enter into the witness box and examine other
witnesses in support of his defence. He, it will bear
repetition to state, need not disprove the prosecution case
in its entirety as has been held by the High Court.
39. A presumption is a legal or factual assumption
drawn from the existence of certain facts."
Indisputably, a sale deed was executed in favour of the appellant
herein by the persons in whose favour the wife of the respondent had
executed Deeds of Sale.
A sum of Rs. 4 lakhs had been withdrawn by the respondent from the
bank.
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The document was executed on the same day on which Exhibit P-1
was executed.
The learned Trial Judge as also the High Court had arrived at a
finding of fact that the testimony of the appellant (DW-1) was supported by
other witnesses examined on her behalf. The High Court, however,
proceeded to hold that Ramchandran Pillai and Thankamony had not been
examined nor the purported Deeds of Sale executed on their behalf by the
wife of the respondent had been examined. Appellant, as noticed
hereinbefore, examined herself. The wife of the complainant had been
working in a school near her house. Her explanation in regard to the
circumstances in which she had drawn a cheque was not controverted.
Appellant also examined the scribe of the deed. According to the appellant,
two Sale Deeds were executed showing considerations therefor as Rs.
80,000/- and Rs. 20,000/- only at the instance of the appellant although the
agreed consideration therefor the same was Rs. 5 lakhs. DW-3, Shashi was
also a document writer.
The testimonies of the said witnesses were relied upon by the learned
Trial Judge.
A finding of fact was arrived at that the cheque was not signed 5
months after the execution of the agreement as contained in Ex. P-1 but on
the same day. This finding was arrived at on comparison of the colour of the
ink and ’letter pattern’ obtaining in both the documents. A further finding of
fact was arrived at by the learned Trial Judge that the same had been written
by the same pen. The respondent who examined himself as PW-1 accepted
that he had received a sum of Rs. 20,000/- after the execution of the said
Deed of Sale, but raised a contention that said amount had not been paid in
relation to another transaction; but what other transaction was entered into
by and between the parties thereto had not been disclosed. Despite a definite
stand taken by the appellant in that behalf, the respondent did not bring any
fact to establish as to what the possible transaction could have been. It was,
therefore, opined ;
"...This also suggests that Ext. P2 may be a signed
blank cheque issued by the accused to PW1 as a
security. Thus the facts and circumstances discussed
above leads one to the conclusion that the defence set
up by the accused that he had issued a signed blank
cheque as a security along with Ext. P1 agreement and
Ext. P2 is that cheque he had issued is probable. The
circumstances discussed above are badly damaging the
prosecution case and they are sufficient to displace the
presumptions available to the complainant. These
circumstances in fact corroborates PW1 to show the
reasonable possibility of the non existence of the
presumed fact. The accused need not prove his defence
case beyond reasonable doubt. Here the evidence
tendered by DW1 together with the circumstances
discussed above is seen sufficient to rebut the
presumptions. Now the burden again shifts to the
complainant and he is to prove by independent positive
evidence the most material fact of existence of debt of
the accused. The complainant had not produced
sufficient evidence to prove his case beyond reasonable
doubt, without the help of the presumptions. Thus the
complainant failed to prove beyond reasonable doubt
that the accused had issued Ext. P1 cheque towards the
repayment of Rs. 1,00,000/- he had borrowed from
PW1 as alleged...."
The High Court, on the other hand, only on the premise that said
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Ramchandran Pillai and Thankamony had not been examined and the
appellant did not exhibit the Deeds of Sale executed in their favour by the
wife of the respondent opined that the said finding was perverse. The
reasonings of the learned Trial Judge had not been met by the High Court.
Nothing has been stated as to why the findings of the learned Trial Judge
were not probable.
Having considered the entire fact situation obtaining in the present
case, we are of the opinion that the defence case cannot said to be wholly
improbable one. If it was probable, the findings of the learned Trial Judge
could not have been thrown out without meeting the reasonings therefor.
The High Court, therefore, in our opinion was not correct in interfering with
the said Judgment.
It is now well settled when two views are possible, the High Court
while exercising its appellate power against a judgment of acquittal, shall
not ordinarily interfere therewith. [See V. Venkata Subbarao v. State
represented by Inspector of Police, A.P. \026 2006 (14) SCALE 125].
For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed.
