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SUPREME COURT OF INDIA
(From Kerala High Court)
S.B. Sinha and Markandey Katju, JJ.
Kamala S. - Appellant
versus
Vidyadharan M.J. & Anr. - Respondents
Criminal Appeal No. 233 of 2007
Decided on 20-2-2007
Held : The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case. (Para 15)
This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution. (Para 17)
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 A sum of Rs. 4 lakhs had been withdrawn by the respondent from the bank. (Para 18)
The learned Trial Judge as also the High Court had arrived at a finding of fact that the testimony of the appellant (DW-1) was supported by other witnesses examined on her behalf. (Para 19)
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 learned Trial Judge were not probable. (Para 21)
Having considered the entire fact situation obtaining in the present case, we are of the opinion that the defence case cannot said to be wholly improbable one. If it was probable, the findings of the learned Trial Judge could not have been thrown out without meeting the reasonings therefor. The High Court, therefore, in our opinion was not correct in interfering with the said Judgment. (Para 22)
It is now well settled when two views are possible, the High Court while exercising its appellate power against a judgment of acquittal, shall not ordinarily interfere therewith. (Para 23)
Result : Appeal allowed.
S.B. Sinha, J. - Leave granted.
2. 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.
3. 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.
4. 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 respectively. The Sale Deeds were allegedly executed in favour of the aforementioned persons as a security in lieu of some amount paid in her favour. However, when the Thankamony and Ramchandran Nair demanded the money back from the wife of the respondent, the appellant was approached for purchase of the said property for a consideration of Rs. 5 lakhs. On 05.09.1997, the said Thankmony executed a Deed for Sale in favour of the appellant wherefor she had withdrawn a sum of Rs. 4 lakhs from bank. The said amount was paid to Sathyabhama which in turn was paid to Thankamony and Ramchandran Nair. However, as there was a dispute in regard to the exact area of the property and measurement therefor had not been taken, she had given a cheque to Sathyabhama in the name of her husband as demanded by Sathyabhama on an understanding that the consideration shall be reduced if the area found in the Sale Deed is found short. As upon measurement, the area of the property conveyed in his favour was found to be short by 4 cents, the appellant paid a sum of Rs. 20,000/- to the respondent on 27.11.1997. Allegedly, however the respondent had asked for a sum of Rs. 10,000/- more from the appellant, but a sum of Rs. 5,000/- was only given to him on 18.12.1997 towards full and final settlement thereof and in that view of the matter no further amount was due for her.
5. However, despite the same, a cheque was produced before a bank which, as noticed hereinbefore, was dishonoured.
6. A complaint petition was filed thereafter on the allegation that the appellant had borrowed a sum of Rs. 1 lakh from the respondent for purchasing a house and the same was to be repaid within a period of 5 months.
7. The learned Trial Judge considered the evidence adduced on behalf of the complainant and found the defence of the appellant to be a probable one and having regard to the facts and circumstances of this case, held that the presumption raised under Section 142 of the Act stood discharged and the complainant failed to discharge the onus placed on him stating :
“....This also suggests that Ext. P2 may be a signed blank cheque issued by the accused to PW1 as a security. Thus the facts and circumstances discussed above leads one to the conclusion that the defence set up by accused that he had issued a signed blank cheque as a security along with Ext. P1 agreement and Ext. P2 is that cheque he had issued is 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 t
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