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of <h1>Accused successfully rebutted Section 138 presumptions by proving cheque was security, materially altered without consent</h1> Kerala HC dismissed appeal against acquittal under Section 138 NI Act. Accused successfully rebutted statutory presumptions under Sections 118 and 139 by ... Dishonor of cheque - Appeal against acquittal u/s 138 of NI Act - rebutting statutory presumptions u/s 118 and 139 of NI Act - cheque in a different handwriting and ink - no satisfactory evidence to show that the cheque was issued in discharge of a legally enforceable debt - HELD THAT:- The evidence of PW2, who is the son-in-law of the complainant, shows that he went abroad on 09.03.2003 and returned only on 22.07.2005. The learned counsel for the first respondent pointed out that Exhibit P1 cheque is dated 15.03.2004 and therefore, it can be seen 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 rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence. 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 the amount is due to the complainant or to his son-in-law and further, it is in evidence that PW2, the son in law of the complainant, was abroad from 09.03.2003 to 22.07.2005 and therefore, considering the facts and circumstances I find no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and that there is no satisfactory evidence to show that Exhibit P1 cheque was issued in discharge of a legally enforceable debt from the side of the accused to the complainant and in that circumstance, I find that this appeal is liable to be dismissed. In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Issues involved: Appeal against acquittal u/s 138 of NI Act, rebutting statutory presumptions u/s 118 and 139 of NI Act.Summary:The appeal was filed against the judgment acquitting the accused of the offence u/s 138 of the NI Act. The complainant alleged that the accused issued a cheque that was dishonored, leading to the legal proceedings. Evidence was presented by both parties, including witnesses and exhibits. The trial court found that the accused successfully rebutted the statutory presumptions u/s 118 and 139 of the NI Act, leading to the acquittal.The appellant contended that the cheque was issued in discharge of a debt, supported by the agreement between the accused and the complainant's son-in-law. However, the respondent argued that the cheque was misused, and the payee's name was added without consent. The evidence presented by witnesses, including the son-in-law being abroad during the cheque's validity, supported the respondent's case.Citing legal precedents, the court emphasized the onus on the accused to raise a probable defense to rebut statutory presumptions. The standard of proof required is preponderance of probabilities, not beyond reasonable doubt. Considering the evidence and circumstances, the court found no reason to interfere with the trial court's decision that the accused successfully rebutted the presumptions, leading to the dismissal of the appeal.In conclusion, the appeal was dismissed, and any pending applications were closed accordingly.
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