Dismissed

Mr Mohammed Saleem v. Mr Abdul Rahim Hussain

Karnataka HC25 Nov 2020CRL.A/2137/2017

Case brief

AI extract

What is this about?

The High Court rejected seven criminal appeals filed by a complainant against acquittals of a respondent who was alleged to have issued cheques for discharge of debt. The court held that the complainant failed to prove legally recoverable debt due to a suppressed compromise in a civil suit where he declared no monetary claim existed.

What did the court decide?

The appeals were rejected and the acquittal of the respondent was upheld.

Mr Mohammed Saleem Vs Mr Abdul Rahim Hussain — Cheque Dishonour | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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CRIMINAL APPEAL No.2136/2017 C/W

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CRIMINAL APPEAL Nos.2133/2017, 2134/2017, 2135/2017, 2137/2017, 2138/2017 AND 2139/2017.

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IN CRL.A No.2136/2017

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BETWEEN:

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MR. MOHAMMED SALEEM S/O LATE MOHAMMED HUSSAIN AGED 48 YEARS R/AT MUMTAZ MANZIL KOTEBAGILU, MOODABIDRE MANGALURU – 574 227. DAKSHINA KANNADA DISTRICT REP. BY HIS GPA HOLDER MR. SAYED HASAN S/O LATE BABA SAHIB R/AT REHAMATH MANZIL NEAR GANDHI MIDAN ROAD KARKALA TALUK – 574 104. UDUPI DISTRICT. ..APPELLANT

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(BY SRI MOHAMMED FARUKE, ADVOCATE)

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AND:

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MR. ABDUL RAHIM HUSSAIN S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR, R/AT FLAT No.703, MAHARAJA APARTMENT

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NEAR INDIRA HOSPITAL , FALNIR MANGALURU TALUK – 575 001. DAKSHINA KANNADA DISTRICT ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFC, MOODBIDRI, D.K., IN C.C.No.727/2014- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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IN CRL.A No.2133/2017

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BETWEEN:

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(BY SRI MOHAMMED FARUKE, ADVOCATE)

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AND:

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MR. ABDUL RAHEEM HUSSAIN

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S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR R/AT FLAT No.703, MAHARAJA APARTMENT NEAR INDIRA HOSPITAL , FALNIR MANGALURU TALUK – 575 001 DAKSHINA KANNADA DISTRICT. ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFCD, MOODBIDRI, D.K., IN C.C.No.724/2014- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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IN CRL.A No.2134/2017

BETWEEN:

AND:

MR. ABDUL RAHIM HUSSAIN S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR, R/AT FLAT No.703, MAHARAJA APARTMENT NEAR INDIRA HOSPITAL, FALNIR MANGALURU TALUK – 575 001 DAKSHINA KANNADA DISTRICT. ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFCD, MOODBIDRI, D.K., IN C.C.No.725/2014- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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IN CRL.A No.2135/2017

BETWEEN:

(BY SRI MOHAMMED FARUKE, ADVOCATE)

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AND:

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MR. ABDUL RAHIM HUSSAIN S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR, R/AT FLAT No.703, MAHARAJA APARTMENT NEAR INDIRA HOSPITAL , FALNIR MANGALURU TALUK – 575 001 DAKSHINA KANNADA DISTRICT. ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFCD, MOODBIDRI, D.K., DISTRICT IN C.C.No.726/2014ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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IN CRL.A No.2137/2017

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BETWEEN:

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MR MOHAMMED SALEEM S/O LATE MOHAMMED HUSSAIN AGED 48 YEARS R/AT MUMTAZ MANZIL KOTEBAGILU, MOODABIDRE MANGALURU – 574 227. DAKSHINA KANNADA DISTRICT REP. BY HIS GPA HOLDER MR. SAYED HASAN S/O LATE BABA SAHIB R/AT REHAMATH MANZIL NEAR GANDHI MIDAN ROAD

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KARKALA TALLUK – 574 104. UDUPI DISTRICT. ..APPELLANT

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(BY SRI MOHAMMED FARUKE, ADVOCATE)

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AND:

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MR. ABDUL RAHIM HUSSAIN S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR R/AT FLAT No.703, MAHARAJA APARTMENT NEAR INDIRA HOSPITAL , FALNIR MANGALURU TALUK – 575 001 DAKSHINA KANNADA DISTRICT. ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFCD, MOODBIDRI, D.K., DISTRICT IN C.C.No.728/2014ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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IN CRL.A No.2138/2017

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BETWEEN:

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MR MOHAMMED SALEEM S/O LATE MOHAMMED HUSSAIN AGED 48 YEARS R/AT MUMTAZ MANZIL KOTEBAGILU, MOODABIDRE MANGALURU – 574 227. DAKSHINA KANNADA DISTRICT

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REP. BY HIS GPA HOLDER MR. SAYED HASAN S/O LATE BABA SAHIB R/AT REHAMATH MANZIL NEAR GANDHI MIDAN ROAD KARKALA TALUK – 574 104. UDUPI DISTRICT. ..APPELLANT

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(BY SRI MOHAMMED FARUKE, ADVOCATE)

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AND:

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MR. ABDUL RAHIM HUSSAIN S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR, R/AT FLAT No.703, MAHARAJA APARTMENT NEAR INDIRA HOSPITAL , FALNIR MANGALURU TALUK – 575 001 DAKSHINA KANNADA DISTRICT. ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFCD, MOODBIDRI, D.K., DISTRICT IN C.C.No.729/2014ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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IN CRL.A No.2139/2017

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BETWEEN:

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MR. MOHAMMED SALEEM S/O LATE MOHAMMED HUSSAIN AGED 48 YEARS R/AT MUMTAZ MANZIL

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KOTEBAGILU, MOODABIDRE MANGALURU – 574 227. DAKSHINA KANNADA DISTRICT REP. BY HIS GPA HOLDER MR. SAYED HASAN S/O LATE BABA SAHIB R/AT REHAMATH MANZIL NEAR GANDHI MIDAN ROAD KARKALA TALLUK – 574 104. UDUPI DISTRICT. ..APPELLANT

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(BY SRI MOHAMMED FARUKE, ADVOCATE)

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AND:

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MR. ABDUL RAHIM HUSSAIN S/O LATE HAJI HUSSAIN IBRAHIM AGE MAJOR, R/AT FLAT No.703, MAHARAJA APARTMENT NEAR INDIRA HOSPITAL , FALNIR MANGALURU TALUK – 575 001 DAKSHINA KANNADA DISTRICT. ..RESPONDENT

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(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2017 PASSED BY THE CIVIL JUDGE AND JMFCD, MOODBIDRI, D.K., DISTRICT IN C.C.No.730/2014ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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THESE CRIMINAL APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the appeals are listed for admission with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.

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These are the seven appeals directed against the Judgment dated 18.11.2017 passed by the Civil Judge and JMFC, Moodbidri, D.K., District in C.C.Nos.724/2014, 725/2014, 726/2014, 727/2014, 728/2014, 729/2014 and 730/2014 wherein accused

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was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act and being aggrieved by said order of acquittal complainant has come in appeal in all these cases.

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Complainant and accused are same and

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transactions are between the same. The total number of cheques involved are seven each of them for

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Rs.10,00,000/- given by accused to complainant

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towards clearance of monetary liability that came to be dishonoured by virtue of instructions “Payment

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stopped by drawer”.

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CRL.A. NO.	CHEQUE NO.	DATE	AMOUNT	CC NO. RESULT
2136/2017	078717	22.02.2014	Rs.10,00,000/-	727/2014 Acquitted
2133/2017	078718	22.02.2014	Rs.10,00,000/-	724/2014 Acquitted
2134/2017	078716	22.02.2014	Rs.10,00,000/-	725/2014 Acquitted
2135/2017	078714	22.02.2014	Rs.10,00,000/-	726/2014 Acquitted
2137/2017	078720	24.02.2014	Rs.10,00,000/-	728/2014 Acquitted
2138/2017	078715	24.02.2014	Rs.10,00,000/-	729/2014 Acquitted
2139/2017	078719	24.02.2014	Rs.10,00,000/-	730/2014 Acquitted

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Complainant got issued legal notices.

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Ex.P-16 – dated 26.03.2014 Ex.P-17 – dated 26.03.2014 Ex.P-18 – dated 26.03.2014 Ex.P-19 – dated 26.03.2014 Ex.P-20 – dated 26.03.2014 Ex.P-21 – dated 26.03.2014 Ex.P-22 – dated 26.03.2014

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The total payment stated to have been made by

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the complainant to the accused is Rs.70,00,000/-.

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Before adverting attention on facts of the case it is necessary to mention regarding affairs and correspondence and transaction between the complainant and accused. Complainant Mohammed Saleem is stated to be a businessman at Dubai. Accused Abdul Rahim Hussain and his brother H.Moidinabba were carrying on partnership business of trading in mineral products and business of transportation of mineral products in the name and style of M/s.Balaji Minerals and Logistics at Baikampady, Mangaluru. The complainant claims that the accused issued seven cheques. As the cheques came to be dishonoured, legal notices got issued by complainant on 26.03.2014 and have been returned with an endorsement as “not claimed’. Complainant

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filed complaint. Learned Civil Judge and JMFC, Moodbidri took cognizance in all the cases. Details are as per the following table:

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Sl.No.	PCR No.	C.C.No.	Result	Crl.A.No.
1.	70/2014	727/2014	Accused acquitted	2136/2017
2.	65/2014	724/2014	Accused acquitted	2133/2017
3.	66/2014	725/2014	Accused acquitted	2134/2017
4.	67/2014	726/2014	Accused acquitted	2135/2017
5.	71/2014	728/2014	Accused acquitted	2137/2017
6.	72/2014	729/2014	Accused acquitted	2138/2017
7.	---	730/2014	Accused acquitted	2139/2017

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The cheques that were claimed to have been

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issued in discharge of obligation is denied.

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7. The further terms of complaint reveal that the

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parties are not strangers. They are known to each

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other. Accused Abdul Rahim Hussain and his brother Moidinabba were carrying on business under partnership trading in mineral products and business of transportation of the same in the name M/s.Balaji Minerals and Logistics at Baikampady, Mangaluru. In the month of August 2007 complainant joined as a partner in the partnership business of minerals and accused and his brother reconstituted the partnership in the name and style of M/s.Coastal Mineral Trading and Exports. The complainant is one of the partner and has entered into a partnership deed on

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21.08.2007.

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It is stated that complainant had paid Rs.10,00,000/- to the accused before entering into the partnership deed as an advance amount from his business. After execution of partnership deed the complainant paid huge amount to the accused in the

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year 2007, 2008 and 2009. The complainant paid nearly Rs.1 crore to the accused for mineral business. Most of the amounts paid by the complainant to the accused is through NRI cheques. Accused has not paid any profit from the business nor settled it back to the complainant. Accused promised the complainant that he would settle the amount within short period. The complainant demanded accused several times and finally seven cheques were issued by accused drawn on Corporation Bank, Mulki Branch, dated 22.02.2014 and 24.02.2014 for Rs.10,00,000/- each. Complainant presented the seven cheques through his bankers State Bank of India, Moodabidri Branch. The cheques were dishonoured with endorsement “Payment stopped by drawer” dated 25.02.2014. The rest of the matter is complainant got issued legal notices demanding the accused to pay the amount finally

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there was no compliance and complainant filed the case.

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Learned counsel for the appellant – Sri.

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Mohammed Faruke would submit that the complainant

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has big state of affairs and he is not a kind of falling drop. And there was no occasion for him to demand the amount borrowed by accused, occasionally for now and then. The issuance of cheques is accepted but it is stated that they were issued only when coercive steps are taken. He would further submit that

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there were umpteen number of transactions wherein the previous monetary transactions are also revealed

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between the complainant and the accused. The learned counsel would further submit that the signature on the cheques is not disputed nor issuance of cheques. Thus, the complainant has been cheated through disruptive activities of the accused and there

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was no alternative left for the complainant except to file the case and on which the court came to the conclusion that the transactions were designed and cheques were not issued for repaying the obligation.

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The learned counsel for accused is present.

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For a moment, certain points are to be listed which are as follows:

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1. issuance of cheques or the account held by the accused and his signature on the same is not disputed.

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1. Issuance of cheques is not disputed but the circumstances are stated to be different.

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The first understanding was stated that the complainant had paid certain amount and also paid huge money for operations and extraction of minerals to the accused. However, he became defaulter. It was

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at that time in the year 2013, the accused had issued seven post dated cheques drawn on Corporation Bank, Mulki for Rs.10,00,000/- each and the complainant presented the seven cheques for collection. However, the cheques came to be dishonored. No full details regarding the conduct of the parties and the nature of the transactions are mentioned in the complaint. It is to be seen that the complainant works in Dubai and had link with accused even earlier. More particularly, even for the present case, the complainant is represented by his GPA holder Sayed Hasan S/o. late Baba Sahib, resident of Rehamath Manzil, Near Gandhi Midan road, Karkala Taluk and Udupi district.

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In this connection, the partnership is not disputed by either of the parties. According to the complainant’s contention both the complainant and the accused along with others are the partners. The accused had made available the copy of the judgment

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of acquittal in appeal No.2136/2017. The acquittal

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order relates to C.C.No.727/2014.

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The learned trial judge was accommodated with oral evidence of Mr.Sayed Hasan and documentary evidence as Exs.P1 to P8 – cheques in C.C.No.724/14 to 730/2014, Exs.P9 to P15 – Memos issued by SBI, Moodbidri, Exs.P16 to P22 – Office copy of legal notices, Exs.P23 to P29 – returned legal notices with cover, Ex.P30 – certified copy of PC No.67/15, Ex.P31copy of FIR No.97/15 and Exs.P32 to 36- bank statement ledger extracts, Ex.P37 – private complaint, Ex.P38 – FIR lodged by accused and Ex.P39 is ‘B’ report submitted by Moodbidri PS on behalf of the complainant and on behalf of accused no evidence was adduced but produced documentary evidence Exs.D1 to D5.

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The learned trial judge has passed the common

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judgment in all seven cases. The details are as under:

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Sl.No.	PCR No.	C.C.No.	Result	Crl.A.No.
1.	70/2014	727/2014	Accused acquitted	2136/2017
2.	65/2014	724/2014	Accused acquitted	2133/2017
3.	66/2014	725/2014	Accused acquitted	2134/2017
4.	67/2014	726/2014	Accused acquitted	2135/2017
5.	71/2014	728/2014	Accused acquitted	2137/2017
6.	72/2014	729/2014	Accused acquitted	2138/2017
7.	---	730/2014	Accused acquitted	2139/2017

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The cheques that were claimed to have been issued in discharge of obligation is denied by the accused. Ex.D4 is the letter which was written by the accused to the banker not to honor the cheques. It may be necessary at this stage to analyze the legal effect of instruction not to pay will be relevant when there is sufficient balance in the account. Meanwhile,

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the complainant had filed a civil suit against the accused and others before the Additional Civil Judge in O.S.No.20/2012 and the copy of the same was confronted to PW1. In the said suit the parties compromised before the Lok-Adalath on 20.10.2012. The complainant who was the plaintiff in that case filed a memo praying for dismissal of the suit. The said memo was confronted to PW1 in this case also and it is marked as Ex.D2. The order sheet in the civil court also was confronted and which was marked as Ex.D3. Ex.D2 – Memo- in paragraph No.3 of the same, the complainant has clearly stated that the plaintiff having declared that his claim is fully satisfied, as such, he has no further claim against the defendants. It is also stated that the plaintiff hereby declare that he does not possess any cheques of the defendants and he shall not make any monetary claim against the defendants. The trial judge also observed

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that: it is clear that the complainant gave an undertaking before the learned Additional Senior Civil Judge, Udupi as per Ex.D2 – memo that he will not claim any monetary claim or any other claim against the accused on the basis of any cheques or otherwise. The complainant has fully suppressed the settlement in civil suit and it is also stated that he is not having any monetary claim of the same against any other. It is stated in paragraph Nos.4 and 5 of the plaint in O.S.No.20/2012 that “complainant had paid Rs.1,42,00,000/- to the accused herein and also stated that on 25.05.2007, the complainant paid Rs.25,00,000/by way of cheque drawn on Commercial bank, Dubai, in favour of the accused. In this connection, portion of the cross-examination is also stated and as I am acquainted with Kannada language I am translating the same and during the cross-examination of PW.1, he has deposed that in the

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year 2007, the amount that was paid on 25.05.2007 was paid by Son-in-law of PW.1. The further chiefexamination of PW.1 he states that the accused had finally in the month of August 2013 issued seven post dated cheques for Rs.10,00,000/- each. As held by the trial Court, the complainant has not proved the payment of the alleged money to the accused and all these cheques produced in the case by accused and bank statements of Corporation Bank, Mulki were confronted to PW.1 and the same is marked as Ex.D5. This bank statement clearly shows that on 12.06.2007, cheque bearing No.0078713 of accused drawn on Corporation Bank was encashed by H.Moidinabba. Regard being had to the fact that stop payment charge of Rs.350/- was also debited. Now the question is complainant says that he also became partner to the reconstituted firm between the accused

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and his brother and the complainant was pumping the money into the firm.

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Partnership is an extension of law of agency. Section 4 of the Indian Partnership act, 1932 defines the partnership is a relationship between persons who have agreed to share profits of the business carried on by or any of them acting for.

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The scheme of Section 138 of Negotiable Instruments Act, is whenever, negotiable instrument in the form of cheque is issued in discharge of monitory obligation which in terms of the Act is considered as legally recoverably debt and such instrument when dishonoured amounts to deprival of payment of legally recoverable debt.

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In the compromise memo - Ex.D2 before the Lok-adalath filed in the suit by the complainant, he declares that he has no monitory liability from the

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accused and he does not have any cheques in his name issued by accused and there is no liability. It is necessary to mention this decree passed in O.S.No.20/2012 which is not challenged on the ground of any of the flaws. The declaration of the complainant that he is not in possession of any of the cheques issued by the accused and moreover, even in such compromise, there is no mention whether the amount was pumped into the firm or to the accused. The contents of the compromise reads as under:

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“Memo filed by the plaintiff

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The plaintiff above named begs to submit as follows:

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1. That, the dispute between the Plaintiff and the Defendants has been settled out of Court, amicably.

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2. That, in view of the settlement the Plaintiff does not wish to continue the above suit.

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3. That, the Plaintiff hereby declares that, his claim is fully settled and as such he has no further claim of any sort, against the Defendants.

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4. That, the Plaintiff admits that, all the disputes between him and the Defendants relating to the above suit has been resolved and the plaintiff is fully satisfied with his claim and his claim is fully settled by the defendants.

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5. That, the Plaintiff hereby declares that, he does not possess any cheques of the Defendants and he shall not make any monetary claim or any other claim against the Defendants hereafter on the basis of any cheques or otherwise.

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6. That, the Plaintiff further unequivocally declares that, nothing is due from the Defendants and the Defendants are not liable to pay any money/amount to the Plaintiff.

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7. That, the Plaintiff hereby declares that, he has given up all the claim against ARM Groups (Residency), Manipal.

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8. That, in view of the settlement, the Plaintiff prays that, the full court fee paid by him may be kindly ordered to be refunded to him.

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Therefore, the Plaintiff prays that, the court may be pleased to dismiss the above suit as not pressed, in the interest of justice.”

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The admission of signature on a cheque does not mean the execution of the cheque. The presumption in respect of negotiable instrument is in respect of legally recoverable debt which means when a person holds the cheque signed by another it does not mean to conclude that other person has issued the cheque unless other materials and circumstances are there to infer there was a legally recoverable debt and the

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presumption is cheque was issued for discharge of liability.

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The Hon’ble Apex Court in the case of Hiten P.

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Dalal Vs. Bratindranath Banerjee held that presumption that cheque was drawn for discharge of liability of drawer, is presumption of law and it ought to be raised by the court in every case. For rebuttal evidence, nature of mere plausible explanation is not sufficient and proof of explanation is necessary.

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Further in AIR 2010 SC 1898 – in the case of

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Rangappa Vs. Mohan, finding of the Hon’ble Supreme Court is once the cheque relates to the account of the accused and he accepts and admits the signatures, then initial presumption as contemplated under Section 139 of Negotiable Instrument Act is to be raised by the court in favour of complainant. However, the said presumption is not conclusive one

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or rebuttal, if there are circumstances to establish that there was no legally recoverably debt. It is also necessary to mention that rebuttal of presumption can be established by the accused not necessarily but by filing separate document or materials. If he can point any lapse in the case of the complainant and such aspect inspires confidence of the court to believe presumption is rebutted, Section 139 of the Act would come into picture when once the signature is accepted.

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The Hon’ble Supreme Court in the case of Sampelly Satyanarayana Rao Vs. Indian

¶168

Renewable Energy Development Agency, ltd., - 2017 part 1 SCC 149 has found that when once issuance of a cheque and acceptance of signature is admitted, the presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is

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for the accused to rebut the said presumption. As I said may be through his any evidence pointing at the lapse of complainant which indicate and reveal that the claim of complainant is frivolous and not based on true facts.

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The Hon’ble Supreme Court in the case of Rangappa Vs. Mohan - AIR 2010 SC 1898 held that test of proportionality should guide the construction and interpretation of statute and cannot be expected to discharge an unduly high standard of proof. Further each and every aspect of document are to be read in accordance with entire context of the complainant’s case, whether regarding the presumption, rebuttal of presumption and the interpretation of documents.

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Paragraph No.5 of compromise petition is necessary to be repeated wherein the complainant not

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only declares that he does not possess any cheques which were issued by the accused and on the other hand he tells that he has no monitory obligation to be complied by the accused who is defendant in that case and said suit came to be dismissed as not pressed in terms of the compromise as per Ex.D-3.

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In the whole set of circumstances, this is an ideal circumstance where pumping of the cheques and cash by the complainant is not specifically established nor the amount which was paid by whom and payable to whom. Morefully, when both are the partners of the same firm, no balance sheet and no investment details are provided, even no assets are provided which includes any mention of cash at bank and cash on hand and there is no whisper regarding income tax. Regard being had to be fact that complainant is stated to be a businessman at Dubai.

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In the whole set of circumstances, I find the learned trial judge has exercised jurisprudence properly and has rightly rejected the criminal cases. All the appeals which are set down for admission do not require further proceedings and accordingly, they

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are rejected.

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Sd/JUDGE

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SBN/HJ

Mr Mohammed Saleem v. Mr Abdul Rahim Hussain

Case brief

What is this about?

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Mr Mohammed Saleem v. Mr Abdul Rahim Hussain

Case brief

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