JUDGMENT : 1. This is an appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for convenience). The appellant is the complainant in S.T. No. 623/2015 on the file of the Judicial First Class Magistrate Court (Temporary), Attingal and the appellant impugns judgment in the above case dated 27.02.2018, whereby the learned Magistrate acquitted the first respondent herein, who is the accused in the above case on appreciation of evidence. 2. Heard the matter in detail and lower court records are perused. 3. The case of the complainant before the trial court was that, the accused issued two cheques bearing Nos.597146 and 597147 dated 13.08.2013 drawn on the State Bank of India, Pattom Branch for Rs.10,00,000/-each to discharge the liability towards the complainant. Although the cheques were presented for collection, the same were returned for want of funds. Though notice intimating dishonour of cheques and demanding payment of the amount covered by the cheques were issued, the accused failed to make the payment or to send the reply. 4. The learned Magistrate took cognizance of the matter and secured the presence of the accused for trial. During trial, PW1 to PW3 were examined and Exts.P1 to P12 were marked on the side of the complainant. 5. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. DW1 to DW4 were examined and Exts.D1 and D8 were marked. 6. On appreciation of evidence, the learned Magistrate found that the accused is not guilty for the offence punishable under Section 138 of the N.I.Act and thereby acquitted the accused under Section 255(1) Cr.P.C. 7. The learned counsel for the appellant argued that the learned Magistrate failed to appreciate the evidence and on wrong appreciation of facts and evidence involved in this case, acquittal was recorded. According to him, the evidence of PW1 to PW3 supported by Exts.P1 to P12 substantially proved the initial burden caste upon the complainant in the matter of transaction leading to execution of Exts.P2 and P3 cheques and therefore, the trial court ought to have given benefit of presumptions under Sections 118 and 139 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act’) in favour of the appellant/complainant. The learned counsel given reliance on the evidence of PW1 as well as PW3 and also Ext.P12 in particular. 8. Whereas, the learned counsel for the first respondent supported the judgment of acquittal on the ground that the complainant miserably failed to prove his initial burden so as to avail benefit of presumptions in his favour. On perusal of the judgment, the learned Magistrate observed in Paragraph No.18 is as under: “18. The complainant swear that at the time of giving these two cheque leaves the entries were already filled up and the accused put her signature in front of him. When the accused avoided the proposed project and in discharge of the liability of Rs.20 lakhs already received by her two cheques leaves were issued. The evidence of DW1 clearly reveals that even without completing atleast basement work no loan amount will be released and other installments will be released according to the progress of construction work. In this case, as per the evidence the entire loan amount was credited to the complainant according to the progress of construction work, which means the work completed satisfactorily. Hence, the contrary evidence given by the complainant is quite unbelievable. But according to defence version, the construction was undertaken by one Bineesh. On going through Ext.D1, it can be seen that all the loan amount was encashed by one Bineesh using cheque leaves issued by the complainant. All these circumstances leads to the conclusion that he may be the contractor of the said building. Another aspect to be considered is that nobody will give such a huge amount without any documentary proof. The existence of an oral agreement as alleged by the complainant was not believable for a moment considering the other evidence in this case.” 9. Thus, it was held by the learned Magistrate that the case put up by the complainant is not acceptable. In view of the rival contentions, the points raised for consideration are : 1. Whether the court below is justified in acquitting the 1st respondent/accused in the above case? 2. Whether the judgment of acquittal requires interference?. If so, what is the relief to be granted? 10. PW1 examined in this case as complainant. He deposed that the husband of the accused was a resident nearby the residence of the complainant in London for about 15 years. 2. Whether the judgment of acquittal requires interference?. If so, what is the relief to be granted? 10. PW1 examined in this case as complainant. He deposed that the husband of the accused was a resident nearby the residence of the complainant in London for about 15 years. Since they were good friends, they used to go to their respective house periodically. While so, the accused made the complainant to believe that she was a civil engineer and was part of construction of International Airport, Dubai. Believing the words of the accused, the complainant entrusted construction of a house on the basis of a permit issued by Chirayankeezhu Grama panchayat on 11.09.2012 for a total sum of Rs.55,00,000/-. The so called plan is Ext.P1. In view of the above undertaking occurred on 19.04.2013, the complainant entrusted Rs.10,00,000/-(Rupees ten lakh) to the accused on 28.04.2013, which was encashed from his account maintained at Indian Overseas Bank, Chirayinkeezhu and thereafter, 03.06.2013 also, Rs.10,00,000/-was withdrawn from the account of the complainant and the same was entrusted to the accused on 04.06.2013 at his residence. Ext.P2 (in fact Ext.P11, as per appendix of the judgment) is the statement of accounts showing the above said withdrawal. 11. The complainant deposed about the presentment of cheque, which dishonoured for want of funds, issuance of notice and its acceptance by the accused. Two cheques were marked as Exts.P2 and P3. PW1 was cross-examined at length to shake her version. The defence case put up during cross-examination was that, the husband of the accused brought the travel bag of the accused containing Exts.P2 and P3 cheques at the time when he returned back after leave. The so called cheques, without the knowledge of the husband of the accused, were procured by the complainant for the purpose of this case. The said suggestion was denied by the complainant. PW2 examined in this case is the Bank Manager of Indian Overseas Bank to prove Ext.P11 statement of accounts. As far as challenge against Ext.P11 is concerned, the same is confined to want of certification under the Bankers’ Books Evidence Act. 12. Apart from the evidence of PW1, PW3-another witness also was examined. PW2 examined in this case is the Bank Manager of Indian Overseas Bank to prove Ext.P11 statement of accounts. As far as challenge against Ext.P11 is concerned, the same is confined to want of certification under the Bankers’ Books Evidence Act. 12. Apart from the evidence of PW1, PW3-another witness also was examined. PW3 had given evidence that he had witnessed entrustment of Rs.10,00,000/-to the accused on 04.06.2013 at 7 pm at the residence of the complainant and his evidence further is that the said amount was withdrawn by one ‘Bineesh’ as per the cheque issued by the complainant for Rs.10,00,000/-. During cross-examination, evidence of PW3 was that the complainant written cheque in the name of ‘Bineesh’ for Rs.10,00,000/-in his presence. DW3 examined in this case is none other than the accused in this case. During chief examination, Ext.D2, copy of computer generated building plan for the purpose of construction of house of the complainant issued by Nova Constructions was marked subject to proof. Ext.D3, the visiting card of Nova Constructions also was let in evidence subject to proof. Similarly, Ext.D4 obtained by the accused from quickkerala.com, the website of Nova Constructions showing the names of Bineesh Kumar and Manoj also was proved. Similarly, Ext.D5, the information given by BSNL under the RTI Act showing that Bineesh N.S. was the proprietor of the Nova Constructions, also was let in evidence. Further, Ext.D6-copy of divorce petition filed by the accused before the Family Court also was let in evidence. 13. Apart from marking the above documents, the accused not stated anything as regards the transaction, either by denying or by disputing the same, in any manner. When DW3 was cross-examined, her evidence is that Exts.P2 and P3 cheques were issued from her accounts and the signatures also were admitted by her. She also deposed that she had received Advocate notice, but no reply was sent. When Ext.P12, an undertaking alleged to be given by the accused with regard to the issuance of Exts.P2 and P3 cheques was confronted during cross-examination, DW3 admitted the signature, name, address etc in Ext.P12 as that of her and written in her own handwriting. During further cross-examination, she admitted that her contention was that her cheques reached England and the same happened to be inside the travel bag of her husband. She also stated that she also did not issue any stop payment. During further cross-examination, she admitted that her contention was that her cheques reached England and the same happened to be inside the travel bag of her husband. She also stated that she also did not issue any stop payment. Filing of divorce petition as on 07.11.2015 also is admitted. Although during re-examination, the entries in Malayalam in Ext.P12 was denied by putting a leading question, and also by putting another leading question the date behind the signature also was denied, no specific contention raised by the accused as to how she happened to issue Ext.P12 containing her admitted name, address and signature. DW1, in fact, supported evidence of PW1 in relation to encashment of Rs.14,00,000/-on 27.04.2013 and Rs.10,00,000/-on 03.06.2013 towards payment of housing loan on its first stage. Eventhough DW2 was summoned to prove issuance of building permit during 2012, the same was not produced for want of availability. 14. In so far as proof of prosecution launched alleging commission of offence under Section 138 of the NI Act, the law is well settled. 15. Going by the judgment under challenge, it is relevant to note that, the learned Magistrate relied on the evidence of DW1 to hold that without completing atleast basement work, no loan amount would be released and the other installments would be released according to the progress of construction work. Therefore, the construction was completed and therefore, the case put up by the complainant that he had entrusted the accused to effect construction work was disbelieved by the trial court. The crucial question is as to whether the evidence available in this case would substantiate proof of transaction which led to execution of the cheques in question. As I have already pointed out, the accused admitted that the signatures in the cheques were that of her and she had no explanation on what circumstances she had issued Ext.P12, the contents of which was not denied acknowledging, issuance of Exts.P2 and P3 cheques. 16. As I have already pointed out, the accused admitted that the signatures in the cheques were that of her and she had no explanation on what circumstances she had issued Ext.P12, the contents of which was not denied acknowledging, issuance of Exts.P2 and P3 cheques. 16. On perusal of the evidence discussed herein above, it has to be held that the complainant discharged his initial burden in the matter of transaction led to execution of Exts.P2 and P3 cheques, well supported by Ext.P12 acknowledgment letter, for which no specific denial or no explanations how Ext.P12 containing the admitted signature, name and handwriting of the accused, was issued, so as to get benefit of presumption under Sections 118 and 139 of the N.I.Act. 17. Law regarding presumption is well settled. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [ 2010 (2) KLT 682 (SC)], Rangappa v. Sri.Mohan. In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution punishable under Section 138 of the N.I Act and held as under: “The presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [ 2008 (1) KLT 425 (SC)] may not be correct. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specified a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 18. In the decision reported in [ 2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v. Mukesh Kumar, the Apex Court while dealing with a case where the accused has a contention that the cheque issued was a blank cheque, it was held as under: “A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.” 19. In a latest 3 Bench decision of the Apex Court reported in [ 2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], M/s.Kalamani Tex & anr. v. P.Balasubramanian the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I Act it was held as under: “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. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. …................ 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. …................ 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar ( 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that: “Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.” 20. It is relevant to refer a latest decision of the Apex Court reported in [ 2022(5) KHC 560 (SC)], Oriental Bank of Commerce v. Prabodh Kumar Tewari, whereas it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 21. Even though the court below found that the complainant failed to discharge the transaction led to execution of Exts.P2 and P3 cheuqes, the said finding appears to be incorrect. If so, the complainant shall be entitled to get the benefit of presumptions under Sections 118 and 139 of the N.I.Act. Further, there is no evidence in this matter to hold that the accused rebutted the presumptions by the available evidence. Therefore, the judgment of acquittal impugned herein stands set aside and the accused is found to be guilty for the offence punishable under Section 138 of the N.I.Act. 22. In the result, this criminal appeal is allowed. The judgment impugned stands set aside. Therefore, the judgment of acquittal impugned herein stands set aside and the accused is found to be guilty for the offence punishable under Section 138 of the N.I.Act. 22. In the result, this criminal appeal is allowed. The judgment impugned stands set aside. Therefore, the 1st respondent/accused in this matter stands convicted for the offence punishable under Section 138 of the N.I.Act and the she is sentenced to undergo simple imprisonment for a day till raising of the Court and also pay a fine of Rs.25,00,000/- (Rupees Twenty Five Lakh Only). The fine amount, if realized, Rs.24,75,000/- (Rupees Twenty Four Lakh Seventy Five Thousand Only) shall be given as compensation to the complainant under Section 357(1) (b) of Cr.P.C. The remaining amount shall go to the State exchequer. In default of payment of fine, the 1st respondent/accused shall undergo default imprisonment for a period of six months. 23. The learned counsel for the 1st respondent/accused sought for three months time. Considering the fact that, the cheque is of the year 2013 and the amount as Rs.25,00,000/-, I am inclined to grant two months time to the accused from today to pay the fine and to undergo the sentence. 24. Therefore, the 1st respondent/accused is directed to surrender before the trial court on 09.03.2023 to undergo the sentence and to pay the fine. If the 1st respondent/accused fails to surrender, as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 08.03.2023. Registry is directed to forward a copy of this judgment to the trial court for information and compliance within seven days.