Back
2025 Supreme(Online)(KER) 14686
HIGH COURT OF KERALA
C.S. Sudha, J
K.K.DEVARAJ – Appellant
Versus
SUCHITHRA GOPI – Respondent
CRL.A 1302/2008
SRI.R.MURALEEKRISHNAN, SRI.RAAJESH S.SUBRAHMANIAN, SRI.V.R.RAJESH, SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
The initial burden of proof lies with the complainant to establish a legally enforceable debt under the Negotiable Instruments Act, which was not met in this case.
Headnote:(A) Criminal Procedure Code, 1973 - Section 378(4) - Negotiable Instruments Act, 1881 - Section 138 - Appeal against acquittal - The appellate court reversed the trial court's conviction of the accused for dishonor of cheque due to insufficient evidence of a legally enforceable debt - The complainant failed to prove the transaction and the appellate court found no infirmity in its findings. (Paras 1, 4, 8, 9)
(B) Burden of Proof - The initial burden of proving the transaction lies with the complainant, and only upon discharge of this burden does the presumption under Section 118 of the N.I. Act arise, shifting the burden to the accused. (Paras 8)
Facts of the case:
The complainant alleged that the accused borrowed ₹75,000/- and issued a cheque which was dishonored due to insufficient funds. The trial court convicted the accused, but the appellate court acquitted her, finding insufficient evidence of the debt. (Paras 1-3)
Findings of Court:
The appellate court found that the complainant failed to prove the financial transaction and that the evidence presented did not support the claim of a legally enforceable debt. (Paras 8-9)
Issues: The main issue was whether the appellate court's acquittal of the accused warranted interference by the higher court. (Para 4)
Ratio Decidendi: The court upheld the appellate court's findings, emphasizing that the complainant did not meet the burden of proof required to establish the existence of a legally enforceable debt. (Paras 8-9)
Result: Appeal dismissed.
JUDGMENT
This is an appeal under Section 378(4) Cr.P.C . filed by the complainant against the judgment dated 15/10/2007 in Criminal Appeal No.633/2006 on the file of the Court of Session, Alappuzha, which reversed the judgment dated 15/11/2006 in C.C.No.658/2004 on the file of the Court of the Judicial First Class Magistrate-II, Cherthala and acquitting the accused under Section 255(1) Cr.P.C . of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act)
2. As per the complaint, the accused, an acquaintance, borrowed an amount of ₹75,000/- and in discharge of the same issued Ext.P1 cheque dated 08/06/2004 drawn on the Federal Bank Ltd., Aroor Branch, Alappuzha. When Ext.P1 cheque was presented by the complainant before his bank, namely, the Alappuhza District Co-operative Bank Ltd., Aroor Branch, the same was returned vide Ext.P2 memo dated 13/07/2004 due to insufficient funds in the account of the accused. The complainant caused to issue Ext.P6 lawyer notice dated 15/07/2004 calling upon the accused to clear the cheque amount. The notice was accepted by the accused on 17/07/2004. Instead of clearing the cheque amount, she has sent a reply raising false and untenable contentions. The cheque amount has not been repaid so far by the accused and hence, the complaint.
3. The trial court as per judgment dated 15/11/2006 in C.C.No.658/2004 found the accused guilty of the offence punishable under Section 138 of the N.I. Act and hence convicted and sentenced her to simple imprisonment for a period of six months. The accused was also directed to pay ₹75,000/- as compensation under Section 357(3) Cr.P.C . to the complainant and in default of payment of compensation to undergo simple imprisonment for a period of three months. Aggrieved, the accused preferred Crl.A.No.633/2006. The appellate court as per the impugned judgment dated 15/10/2007, reversed the judgment of the trial court and acquitted the accused under Section 255(1) Cr.P.C . Aggrieved, the complainant has come up in appeal.
4. The only point that arises for consideration in this appeal is whether the finding of acquittal of the accused by the appellate court requires any interference by this Court.
5. Heard both sides.
6. It was submitted by the learned counsel for the appellant/complainant that the trial court had rightly convicted and sentenced the accused of the offence punishable under Section 138 of the N.I. Act. However, the appellate court on a misappreciation of the evidence and law on the point reversed the judgment and acquitted the accused. Hence, the impugned judgment is liable to be reversed. Per contra, it was submitted by the learned counsel for the respondent/accused that there is no infirmity in the findings of the appellate court calling for an interference by this Court.
7. The complainant when examined as PW1 more or less stands by his case in the complaint. The defence case as revealed from Ext.P7 reply notice and the testimony of DW1 and DW2 is that the husband of the accused borrowed an amount of ₹5,000/- from one Raveendran, an acquaintance of the complainant in the year 2003 at which time Ext.P1 signed blank cheque of the accused was given as security. Raveendran transferred the cheque for an amount of ₹75,000/- to the complainant, who in turn has filed this false case. In order to substantiate the defence case, the accused offered herself as a witness and examined herself as DW2 and her husband was examined as DW1.
8. The initial burden of proving the transaction is on the complainant and it is only when the initial burden is discharged, the presumption under Section 118 of the N.I. Act is attracted and then the burden would shift to the accused to rebut the same. It is not necessary for the accused to prove his defence beyond reasonable doubt, but he need only show a preponderance of probabilities in his/her favour. As stated earlier, the defence case is denial of any transaction with the complainant and therefor
