9911796707
TMI Blog2024 (5) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... that PW2 was abroad during the validity of Exhibit P1 cheque and that will probabilise the case of the defence that Exhibit P1 cheque was originally entrusted as security in connection with Exhibit D1 transaction and that the complainant materially altered the said cheque by adding his name as payee without the knowledge and consent of the accused and therefore, there is no reason to interfere with the finding of the trial court in this regard. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RABLE MR. JUSTICE JOHNSON JOHN FOR THE PETITIONER : BY ADV SRI. RAJESH SIVARAMANKUTTY FOR THE RESPONDENT : BY ADVS. SRI. N. GOPINATHA PANICKER SRI. C. KHALID SRI. R. O. MUHAMED SHEMEEM SRI.T. P. SAJID SRI. VIPIN NARAYAN , SR. PUBLIC PROSECUTOR JUDGMENT This appeal is filed against the judgment dated 30.08.2006 in S.T. No. 695 of 2004 of the Judicial First Class Magistrate, Pattambi, whereby the accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short NI Act ) and acquitted under Section 255(1) Cr.P.C. 2. The appellant is the complainant and the complaint was filed on the allegation that the son-in-law of the complainant had entered into an agreement with the accused for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued that the execution of the cheque and the signature is not disputed and that the trial court ought to have found that it was PW1 who advanced money for the construction of the house as per Exhibit D1, agreement, and that the accused has agreed to return the excess amount and that Exhibit P1 cheque was issued in discharge of the said debt. It is also argued that the trial court ignored the statutory presumptions in favour of the complainant under Sections 118 and 139 of the NI Act. 7. But, the learned counsel for the first respondent argued that a perusal of Exhibit D1 would clearly show that the transaction was between the accused and the son-in-law of the complainant and there is nothing in Exhibit D1 or in the complaint that the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially altered the said cheque by adding his name as payee without the knowledge and consent of the accused and therefore, there is no reason to interfere with the finding of the trial court in this regard. 11. In Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35], the Honourable Supreme Court held that the non existence of consideration for the cheque can be proved by raising a probable defence and if it is shown that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant. In Harbhajan Singh v. State of Punjab (AIR 1966 SC 97), the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 14. The Honourable Supreme Court in Chandrappa and others v. State of Karnataka [(2007 (4) SCC 415)] laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following manner: (1) An appellate court has full power to review, re - appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence. 16. The specific case of the accused/first respondent is that he has not issued any cheque to the complainant and no amount was due from the accused to the complainant and that Exhibit P1 cheque was entrusted as security in connection with Exhibit D1 agreement to the son-in-law of the complainant and the same was misused by the complainant after materially altering the same by inserting the name of the complainant as payee in the cheque without the knowledge and consent of the accused. It is pertinent to note that the evidence of PW1 in cross examination would clearly show that he has no definite case as to whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
