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TMI Blog2025 (4) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... re hereinafter referred in this order in their status as they were before the trial court unless otherwise stated. 3. The case of the complainant is that the accused borrowed an amount of Rs.5,00,000/- from him, promising to repay within one month. Since he did not repay the amount as promised, the complainant approached him on several occasions and finally, he issued Ext.P1 cheque dated 20.12.2012, drawn on Canara Bank, Kalpetta Branch, and on presentation through his Banker, the Vijaya Bank, Kalpetta Branch, the cheque was dishonoured for the reason 'funds insufficient', and it was intimated to the complainant by virtue of Ext.P2 memo dated 29.12.2012 issued by the drawee Bank. The complainant then issued Ext.P3 lawyer notice dated 11.01.2013, which was returned unclaimed since the accused evaded the notice. Thereafter, the complainant filed the complaint under Section 138 of the Negotiable Instruments Act, on completion of the statutory period to be granted to the accused for payment of the amount covered by the cheque. 4. From the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P8 documents were marked before the trial court. When examined under Section 313 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Adline Pancy Vijayan v. Navas K.C [ 2024 (7) KHC 250] the learned counsel argued that the accused can prove his defence by drawing inferences from the materials already on record, including the complainant's evidence, circumstances of the case and also by leading his own evidence. If the accused successfully creates doubts in the complainant's claim about the existence of a legally enforceable debt, then the burden of proof shifts back to the complainant who is required to prove the guilt of the accused beyond reasonable doubt. In order to argue that the appellate court ought not have compared the signature of the accused seen in Ext.D2 cheque with that in Ext.P1 cheque, under Section 73 of the Indian Evidence Act, the learned counsel relied on the judgment of this Court in Sivadas S v. State of Kerala [2023 (1) KHC 482] and Kunhalima v. Mahammed [2024 KHC 267] 7. On the other hand, the learned counsel for the 2nd respondent/complainant argued that during cross-examination of PW1, the receipt of Rs.5,00,000/- by the accused from the complainant is not denied. From Ext.P8 account statement, it is proved that the complainant paid a sum of Rs.5,00,000/- to the accused and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." (Emphasis Supplied) 11. In Munna Devi v. State of Rajasthan [AIR 2002 SC 107] the Apex Court in paragraph 3 held thus: "3. We find substance in the submission made on behalf of the appellant. The revision power under the code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." (Emphasis Supplied) 12. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Others [2015 (3) SCC 123], it has been held by the Apex Court thus: "Revisional power of the court under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient reasoning. In such circumstances, the observation made by the appellate court regarding the discharging of burden under Section 139 of the Negotiable Instruments Act by the accused cannot be given importance. 16. In Kalamani Tex (M/s) and Another v. T. Balasubramanyan [2021 (2) KHC 517] the Apex Cort held thus : "Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque / negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243 : (2019) 18 SCC 106 : 2019 (1) KLD 581 : 2019 (2) KLJ 350 : AIR 2019 SC 1876 : 2019 CriLJ 2400), P.18 in the following words: "In the case at hand, even after purportedly drawing the presumption under S.139 of the NI Act, the trial Court proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be brought on record for getting the onus of proof shifted to the complainant. The accused failed to substantiate the case set up by him. 19. In Dattatraya [(2024) 8 SCC 573] the Apex Court held that the liability of the defence in cases under Section 138 of the Negotiable Instruments Act is not that of proving his case beyond reasonable doubt. Similarly in Rajco Steel Enterprises [(2024) 9 SCC 390] the Apex Court held that if the accused able to put up a plausible defence regarding the reason for which funds of the complainant had come to his account, the acquittal of the accused is justified. Likewise, in Adline Pancy Vijayan [2024 (7) KHC 250] this Court held that if the accused successfully creates doubts in the complainant's claim about the existence of a legally enforceable debt, then the burden of proof shifts back to the complainant who is required to prove the guilt of the accused beyond reasonable doubt. There is no dispute regarding this legal position stated by the Apex Court as well as this Court. But in this case as noticed above the complainant succeeded in proving that he lent money to the accused. The defence of the accused cannot be said as plausible one from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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