Dismissed

Abdul Gafoor U.K. v. K.Ashraf

Kerala HC30 Aug 2016CRL.A/263/2009

Case brief

AI extract

What is this about?

Appeals against conviction and sentence under the Negotiable Instruments Act for cheque dishonour were dismissed. The High Court upheld the lower appellate court's decision that the complainant failed to prima facie establish the existence of the underlying transaction required to invoke statutory presumptions.

What did the court decide?

The criminal appeals challenging the conviction and sentence under Section 138 of the N.I.Act were dismissed.

Abdul Gafoor U.K. Vs K.Ashraf — Money Laundering | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938

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CRL.A.No. 263 of 2009

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JUDGMENT DATED 13-10-2008 IN CRL.A 1031/2007 OF ADDITIONAL DISTRICT COURT, KOZHIKODE ST NO.809/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, (MARAD CASES), KOZHIKODE

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APPELLANT(S)/COMPLAINANT:

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ABDUL GAFOOR U.K., AGED 42 YEARS, S/O. KADARKUTTY P.K., HANNA BEHIND M.M. HOSPITAL,CHENGOTTUKAVU, KOYILANDY.

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BY ADV. SRI.K.M.FIROZ

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RESPONDENT(S)/APPELLANTS AND STATE/ACCUSED AND STATE:

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1. K. ASHRAF, AGED 46, S/O.KOYAPPERI, PULPARAMBIL HOUSE, MEEMBALAKUNNU, KOTTOOLI, KOZHIKODE

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2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. SRI.DEVAPRASANTH P.J. R2 BY PUBLIC PROSECUTOR SRI.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2016, ALONG WITH CRL.A. 302/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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B.KEMAL PASHA, J.

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================== Crl.A. Nos.263 & 302 of 2009

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======================= Dated this the 30^th day of August, 2016

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JUDGMENT

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Appellant in these two appeals has been challenging the common judgment passed by the 1^st Additional Sessions Court, Kozhikode, in Crl.Appeal Nos.1031/2007 and 1032/2007. The appellant is the complainant in S.T Nos.809/2006 and 817/2006 of the Judicial First Class Magistrate's Court (Marad cases), Kozhikode, which were disposed of through a common judgment. Both the cases before the trial court were the result of private complaints filed by the appellant herein as complainant, against the 1^st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act').

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The case of the complainant is that the accused had

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Crl.A. Nos.263 & 302 of 2009

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borrowed an amount of 10,50,000/- from him, in discharge₹ of which liability, he issued two post-dated cheques, Exts.P1 and P2. When the said cheques were presented for payment, the same returned dishonoured for insufficiency of funds in the accounts of the accused. Demand notices were issued as contemplated under Section 138(b) of the N.I.Act. Reply notices denying the said liability were issued. No amount was paid and hence the complaint.

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It seems that the trial court, by relying on the evidence of PW1 and Exts.P1 to P12, found the accused guilty of the offence punishable under Section 138 of the N.I.Act, convicted him thereunder and sentenced him as aforesaid. The conviction and sentence were challenged before the lower appellate court through two criminal appeals. The lower appellate court allowed the appeals by setting aside the conviction and sentence passed by the trial court.

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Heard the learned counsel for the appellant and the

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Crl.A. Nos.263 & 302 of 2009

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learned counsel for the 1^st respondent.

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It seems that the trial court has relied on the presumptions under Sections 118(a) and 139 of the N.I.Act, to convict the accused. The lower appellate court has found that the complainant is not entitled to the said presumptions since the complainant has failed to bring out prima facie materials to invite those presumptions. The lower appellate court has found that the appellant has failed to show that he was having an amount of 10,50,000/- to₹ lend to the accused. The appellant has failed to produce materials to show that he was having such funds with him. Further, the lower appellate court has noted down that the appellant had allegedly lend the amount of 10,50,000/- to₹ the accused without obtaining any documents, and that it could not be believed that such a huge amount was lent to the accused without obtaining any documents from him.

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It is the admitted case of PW1 that apart from him and his father and the accused, no other persons were

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Crl.A. Nos.263 & 302 of 2009

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present at the time when the said huge amount was allegedly lent. This is a case, wherein, the appellant has failed to bring out necessary materials to show prima facie the execution of Exts.P1 and P2. There cannot be any presumption to the execution of the cheques. In order to invite the presumptions under Sections 118(a) and 139 of the N.I.Act, the complainant has to bring out necessary prima facie materials.

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This is a case, wherein, reply notices were caused to be issued by the accused denying the said transaction. The learned counsel for the appellant has argued that the amount of 10,50,000/- was raised by him from the profits₹ from his business, by the disposal of his shares in another company, and also from the cash in hand. At the same time, the learned counsel for the 1^st respondent has pointed out that even according to PW1 in cross examination, his bank balance just prior to the alleged lending of money was less than 3,000/- only. No other documentary evidence has₹

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Crl.A. Nos.263 & 302 of 2009

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been produced by the appellant to prove his source of income for enabling him to lend an amount of 10,50,000/-.₹ When the complainant has failed to bring out prima facie materials to bring out the presumptions under Sections 118 (a) and 139 of the N.I.Act, the findings entered by the trial court that the complainant was entitled to the presumptions under Sections 118(a) and 139 of the N.I.Act are not legally sustainable. From what is stated above, it has become evident that there is nothing to interfere with the impugned judgment passed by the lower appellate court. These appeals are devoid of merits and are only to be dismissed and I do so.

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In the result, these appeals are dismissed.

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Sd/- B.KEMAL PASHA, JUDGE

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stu

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//TRUE COPY//

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P.A TO JUDGE.

Abdul Gafoor U.K. v. K.Ashraf

Case brief

What is this about?

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Abdul Gafoor U.K. v. K.Ashraf

Case brief

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