TMI Blog2021 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety, which is guided by the provisions of the Co-operative Societies Act. In no stretch of imagination it could be thought, nor it was suggested that a document was fabricated by the officials of the society for the purpose of deceiving one of its own members for getting enrichment of the society. In fact, that itself is the strength of the prosecution case - there is no serious dispute with regard to the execution of the Ext.P3 cheque. Both PWs 1 and 2 have stated that the instrument was issued after the 2 nd respondent had defaulted monthly repayments and amounts had fallen in lump towards repayment of monthly instalments due to the society. Then the 2nd respondent reached the society and handed over the Ext.P3 cheque, which version cannot be ignored. The Ext.P2 document reveals that he had received an amount of ₹ 18,500/- in the scheme on 05.03.2005. The consideration shown in Ext.P3 is the amount outstanding, together with interest accrued. This fact cannot be eschewed for the mere reason that the statement of accounts was not produced by the appellant. The appellant has proved the case beyond doubt, which entitles him to draw the presumptions under Sections 118 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. Exts.P1 to P7 were also marked. When examined under Section 313(1)(b) Cr.P.C., the 2nd respondent reiterated the earlier plea of innocence and denied all the incriminating materials. No evidence was adduced in defence by the 2nd respondent. After hearing counsel on both sides, by judgment dated 13.01.2011, repelling the plea of innocence, the learned Magistrate found the appellant guilty of offence punishable under Section 138 of the Act and sentenced to undergo simple imprisonment for three months and to pay a fine of ₹ 22,890/- which was directed to be paid as compensation under Section 357(3) of the Cr.P.C; a default sentence was also imposed on the 2nd respondent. 4. The 2nd respondent challenged the said finding in appeal before the Sessions Court, Thiruvananthapuram, which was taken on file as Crl.A.No.164/2011. After hearing counsel on both sides, by the impugned judgment, the learned Sessions Judge allowed the appeal by reversing the finding of guilt, and the 2nd respondent was acquitted. That finding has been called in question by the complainant after taking leave of this Court under Section 378(4) of the Cr.P.C. 5. I heard counsel on both sides. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to draw the presumptions under Sections 118 and 139 of the Act. In order to rebut the presumptions, the accused need not enter the box or adduce evidence. The entire circumstances brought out in evidence are sufficient to disbelieve the version of the appellant/complainant. Similarly, the failure of the appellant to produce the statement of accounts also is relevant. If the documents were produced, the burden would have shifted to the 2nd respondent; on the failure of the appellant to produce such documents, he has no burden to discharge. According to the learned counsel, the appeal is only to be dismissed. He also filed an argument note mainly harping on the point that the degree of proof of the accused in a prosecution under Section 138 of the Act is only by way of preponderance of probabilities. Various authorities are also noted in the argument note. 8. I have gone through the entire records and also the judgment of the trial court as well as the appellate judgment of the Sessions Judge. Appellant is a Housing Co-operative Society, a society registered under the provisions of the Kerala Co-operative Societies Act. The learned counsel for the appellant has pointed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guided by the provisions of the Co-operative Societies Act. In no stretch of imagination it could be thought, nor it was suggested that a document was fabricated by the officials of the society for the purpose of deceiving one of its own members for getting enrichment of the society. In fact, that itself is the strength of the prosecution case. 11. Secondly, as noticed by the trial court, there is no serious dispute with regard to the execution of the Ext.P3 cheque. Both PWs 1 and 2 have stated that the instrument was issued after the 2 nd respondent had defaulted monthly repayments and amounts had fallen in lump towards repayment of monthly instalments due to the society. Then the 2nd respondent reached the society and handed over the Ext.P3 cheque, which version cannot be ignored. The Ext.P2 document reveals that he had received an amount of ₹ 18,500/- in the scheme on 05.03.2005. The consideration shown in Ext.P3 is the amount outstanding, together with interest accrued. This fact cannot be eschewed for the mere reason that the statement of accounts was not produced by the appellant. 12. As noticed by the trial court, the appellant, after not denying the execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. The above decision has been followed by a three Judge Bench of the Supreme Court in Kalamani Tex, quoted supra. 15. It was contended that the learned Sessions Judge has approved the version that the scheme had ended in 2005 and in such a case a cheque might not have been issued in 2008. It may be true that the scheme might have been ended in 2005; but that does not mean that, by the time all the remittances due to the bank were completed. The case of the 2nd respondent is the best illustration to say that he had not paid back the entire monthly dues, which made the authorities to follow him up for getting back the amount. 16. The other contention that there is difference in the date spoken by the witnesses etc., has no relevance. The Ext.P3 bears a clear date, which itself is the case of the appellant. On evaluation of the entire facts and circumstances, I find that the appellant has proved the case beyond doubt, which entitles him to draw the presumptions under Sections 118 and 139 of the Act. The 2nd respondent did not even respond to the lawye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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