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TMI Blog2020 (12) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... of the nature referred to in Section 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. The civil court held that the complainant herein was not the owner of the vehicle and the accused was the registered owner of the vehicle. According to the civil court, an owner of the vehicle cannot lease the vehicle to himself. It was further held that the outstanding amount covered under Ext.P4 cheque which was produced as Ext.A5 in the civil case was not proved. Rightly or wrongly, the civil court entered a finding that the amount covered under Ext.P4 was not recoverable from the accused. The said finding has not been set aside in a process known to law. The finding has become conclusive between the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble debt. Thus, the trial court as well as the appellate court wrongly appreciated the evidence on record. When the conviction and sentence imposed by the courts below against the revision petitioner/accused are based on untenable grounds, it would be just and proper for the High Court to interfere with the findings of the courts below in exercise of powers under Section 401 of the Cr.P.C. The conviction and sentence imposed against the revision petitioner/accused by the trial court as well as the appellate court are set aside. The revision petitioner/accused is found not guilty of the offence punishable under Section 138 of the N.I.Act and he is acquitted thereunder - criminal revision petition is allowed. - Crl.Rev.Pet.No.410 OF 2007 - - - Dated:- 3-12-2020 - THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FOR THE PETITIONER : BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN FOR THE RESPONDENT : R1 BY ADV.SRI.SABU S.KALLARAMOOLA R2 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ ORDER This criminal revision petition is directed against the judgment dated 29.12.2006 rendered by the third Additional Sessions Court, (Ad hoc) Fast Track-I, Thrissur, in Crl.Appeal No.599 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reply nor paid the amount covered under the cheque. 4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P9 on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the incriminating circumstances appearing in the evidence against him. DW1 was examined and marked Exts.D1 to D8 on the side of the accused. 5. On appreciation of the evidence, the learned Magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for the reason 'insufficient fund'. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. The amount was not paid within the statutory period. Hence, the learned Magistrate concluded that the cheque was issued by the accused for the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. 8. The accused was examined as DW1 before the trial court. He admitted execution of Ext.P3 lease agreement and the entrustment of the vehicle as per the agreement. According to DW1, he had given signed blank cheques to the complainant and the complainant might have utilized one of the cheques to file the present case. 9. In this case, A.V.Unnikrishnan, Junior Assistant of the complainant company was examined as PW1. Ext.P4 cheque dated 21.7.98 is for an amount of ₹ 76,247.99. Ext.P5 memorandum issued from the bank would show that the cheque was dishonoured on the ground that there was no sufficient amount in the account of the accused. Ext.P6 dated 3.11.98 is the intimation given from the bank to the complainant regarding the dishonour of the cheque. Thereafter, Ext.P7 Lawyer notice dated 3.11.98 was issued to the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a lease which clearly shows that so long as lessee is in possession then only he will be entitled to pay the rent and other expenses. Now it has come out in evidence that defendant is the registered owner. Even though plaintiff would say that it is owner of the vehicle nothing has been brought out in evidence to establish the fact that plaintiff was owner of the vehicle. Ext.A4 valuation certificate of the insurance Surveyor says that defendant is the registered owner whereas plaintiff is stated as the finance company. It does not state that plaintiff is the owner of the vehicle. If that be so defendant is the registered owner so that the owner cannot lease the vehicle to himself as the definition of lease is handing over possession by the lessor who is the owner to another person who is called lessee. A lessor cannot lease the property to himself. Further what is the outstanding due is not proved in this case. Though Ext.A3 account extract had been produced, it is not at all proved in this case. Since production of statement of account does not mean that the contents are true PW1 is not competent enough to speak about the contents of such account as he is not the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vehicle was repossessed on 22.11.97 illegally by the complainant. He also produced Ext.D7 passbook issued by the complainant. According to him, he paid six installments to the complainant as per Ext.D8. He also produced Ext.D4 to show that he remitted an amount of ₹ 71,354/- towards security. His main complaint is that the amount covered under Ext.D4 was not deducted and the complainant presented the cheque issued on account of some other business transaction without deducting the amount paid by the accused. His definite case is that the cheque was issued as a security in connection with some other business transaction and according to him, he was constrained to issue 48 blank cheques in favour of the complainant. After taking into consideration the entire aspects, Ext.D2 judgment was pronounced by the civil court holding that the amount covered under Ext.P4 is not a legally enforceable debt. 16. It is true that the standard of proof required in the criminal and civil proceedings are entirely different. Civil cases are decided on the basis of the preponderance of evidence. In a criminal case the entire burden lies on the prosecution and the prosecution is bound to prov ..... 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