TMI Blog2007 (2) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ment cannot be sustained, which is set aside accordingly. Appeal allowed. - Arising out of S.L.P. (Crl.) No. 3410 of 2006 - - - Dated:- 20-2-2007 - S.B. Sinha, J. JUDGMENT 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" On the said finding, the learned Trial Judge recorded a judgment of acquittal. On an appeal preferred by the respondent herein there against, 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 accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances 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 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
