IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 11th DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CRL.A NO. 258 OF 2007 AGAINST THE JUDGMENT DATED 28.08.2006 IN CRA 976/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM LEAVE GRANTED ON 12.01.2007 IN CrL.L.P.13/2007 OF HIGH COURT OF KERALA APPELLANT/COMPLAINANT: SIBI MATHEW, JOSEPH VILLA, AZAD ROAD, TRIPUNITHURA, ERNAKULAM DISTRICT, NOW RESIDING AT PULPARA HOUSE, MAJOOR P.O., KOTTAYAM. BY ADV SRI.S.SREEKUMAR (SR) RESPONDENTS/ACCUSED: 1 M.C.RAJAN, PROPRIETOR, M/s RAJU ASSOCIATES, POOMTHOTTATHIL HOUSE, CHOTTANIKKARA. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS.GEO PAUL SRI.JACOB PALLATH BY PUBLIC PROSECUTOR SMT. M.N.MAYA THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.258 of 2007 2 JUDGMENT The complainant came up against the order of acquittal in a prosecution alleging offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act') against the accused based on a cheque of Rs.1,48,594/-. The trial court found that there is failure on the part of the complainant to prove the correctness and admissibility of Ext.D5 statement of account, based on which it is found that the cheque is not supported by the consideration as stated therein. Consequently, the accused was acquitted, against which the complainant came up. 2. Regarding the signature affixed as that of the accused in Ext.P1 cheque, there is no dispute. In fact, it is admitted by the accused that the signature found affixed in the cheque is belonged to him and affixed by him. Further, the cheque leaf was admittedly drawn from his account. No case was advanced that the cheque leaf with his signature was issued to any other person other than the complainant. What is advanced by way of defence by the Crl.Appeal No.258 of 2007 3 accused through DW1, one of his staff, and Exts.D3 to D8, the documents pertaining to their joint business, is to the effect that he had entrusted signed cheque in his office in connection with his business and it was misutilized by the complainant so as to make a cheque for Rs.1,48,594/-. Exts.D3 to D8 documents were marked and let in evidence, not through the accused, but through the complainant PW1. These are the documents showing the transaction and conduct of business of share market. The business covered by these documents was ultimately failed. It is for that purpose those documents were produced, based on which it was submitted that the presumption available under Section 139 as well as Section 118 of the N.I. Act would stand rebutted. It is too adventurous to accept such an argument simply because of the reason that the transaction/share purchased under Exts.D3 to D8 were failed. Nothing was brought to the notice of this court so as to have a connection with the failure of share business covered by Exts.D3 to D8 in connection with the cheque issued. When the accused admits the signature found affixed in the cheque leaf as that of him, he must explain and establish Crl.Appeal No.258 of 2007 4 how and under what circumstance the signed cheque came into the hands of complainant. There should be evidence from the part of the accused at least to show that what he had issued is only a signed blank cheque or he had kept signed blank cheque somewhere in his office or entrusted with some other person, for which no direct evidence was adduced by the accused by mounting on the box. The examination of one of the employees under him may not be sufficient to discharge the initial liability to rebut the presumption both under Sections 139 and 118 of the N.I.Act. Necessarily, the finding of trial magistrate that the accused is not guilty for the said offence cannot be sustained. In fact, there is failure on the part of trial magistrate to go into the abovesaid question regarding the presumption which can be drawn both under Sections 139 and 118 of the N.I. Act and the liability which can be extended on the accused when the presumption is initially drawn under the abovesaid provisions. At this juncture, the learned counsel appearing for the respondent Adv.Jacob Pallath fairly submitted that there is no wilful default to adduce direct evidence, hence pressed for an opportunity. Crl.Appeal No.258 of 2007 5 Hence, the finding of the trial court acquitting the accused for the said offence will stand set aside and the matter is remanded back to the trial court for proper disposal in accordance with the law in force. Both parties are at liberty to adduce additional evidence, if any. The parties shall appear before the trial court on 20.11.2023. The Criminal Appeal will stand allowed in part accordingly. Sd/- P.SOMARAJAN JUDGE DMR/-