High Court of Kerala dismissed the criminal appeal filed by the complainant against the acquittal of the accused in a cheque-bounce case, holding that the lower court's finding that the defendant rebutted the statutory presumption was correct.
Criminal Appeal dismissed; acquittal of the accused confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941
CRL.A.No.1964 of 2006
AGAINST THE JUDGMENT DATED 28-06-2006 IN CRA 139/2004 of ADDITIONAL SESSIONS COURT (FAST TRACK NO.III), MANJERI ARISING OUT OF C.C.NO.472/2002 OF THE J.F.C.M., NILAMBUR DATED 10.02.2004
APPELLANT/ RESPONDENT/ COMPLAINANT :
T.P.SIDDIQUE, S/O. ABOOBACKER, THANNIPOYIL HOUSE, KUNNUMALANGADI, MAMPAD, MALAPPURAM DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENTS/ APPELLANT/ ACCUSED & STATE :
1 T.DEVAYANI, DISTRICT PROBATION OFFICE, KACHERIPADI, MANJERI, MALAPPURAM DISTRICT.
2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM R2 BY SR. PUBLIC PROSECUTOR SRI.K.B.RAMANAND
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :
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JUDGMENT
The first respondent is the accused in C.C.No. 472 of 2002 on the file of the Judicial First Class Magistrate, Nilambur for an offence punishable under Section 138 of the Negotiable Instruments Act.
The accused borrowed an amount of Rs.72,000/- on 25.02.2001 from the complainant and issued a cheque dated 26.03.2001 drawn on the Manjeri Co-operative Urban Bank in discharge of the above debt. The complainant presented the cheque for collection through the South Malabar Gramin Bank, Mampad; but it was returned unpaid due to 'insufficiency of funds'. Eventhough the complainant sent lawyer notices dated 10.04.2001 and 17.04.2001, she did not repay the amount or did not care to send a
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reply notice.
Chief Judicial Magistrate, Manjeri and later, it was transferred to Judicial First Class Magistrate-II, Manjeri and the case was numbered as S.T. No. 99 of 2001. Thereafter, the case was transferred to the Judicial First
Class Magistrate, Nilambur as CC. No. 472 of 2002.
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send a reply to the notice of demand issued by the appellant and also to adduce any defence evidence. He has also contended that while the contention of the accused was that the cheque was actually not handed over to the applicant, but to a different person will not bear any fruit at all, as the same was not proved by the accused by adducing any evidence, no court can come to a finding that the accused had rebutted the presumption available under Section 139 of the NI Act, no court can come to a finding that the accused has rebutted the presumption under Section 139 of NI Act. He has further contended that the first respondent is an accused in several cases of the same nature and therefore, she had taken a contention that she had entrusted the cheque leaves to a complainant in another case.
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complaint under Section 138 of the Negotiable Instruments Act alleging that the respondent has borrowed Rs.72,000/- from him on 25.02.2001 after issuing Ext.P1 cheque dated 26.03.2001 drawn on the Manjeri Co-operative Urban Bank. After dishonour of the cheque, the appellant has approached the Court for taking action against the respondent. The definite case of the respondent was that she has borrowed an amount of Rs.10,000/- from A.T. Faisal and Rs.20,000/- was repaid. At the time of transaction, four blank cheques were given to A.T. Fasal and one of the blank cheque was misused by the appellant/complainant.
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presumption under Sections 138 and 139 of the NI Act is in favour of the appellant. The defence which was taken by the respondent is not yet proved by her and the finding entered by the appellate court is that there was no necessity on the part of the respondent to borrow such a huge amount from the appellant.
the judgment of the appellate court as well as the trial court. The court below has directly entered into a finding on the strength of the evidence adduced by the appellant. There was admission on the part of the respondent that he has subscribed his signature on Ext.P1 cheque. Accordingly, the presumption was drawn in favour of the appellant and accordingly, the respondent was convicted therein. The appellate court has evaluated the entire evidence in detail and ultimately came to the conclusion that the respondent is guilty of the offence as alleged by the appellant.
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According to the respondent, there is no legally enforceable debt and she has not borrowed any amount from the appellant and according to her, the appellant has colluded with his neighbour A.T. Faisal and received Ext.P1 cheque of the respondent and forced to file a frivolous complaint against the respondent. The court below has not considered the fact that the case filed by A.T. Faisal against the respondent was ended in an acquittal. In fact, Mr. Faisal has filed C.C. No. 336 of 2001. PW1, the appellant herein, has given evidence to the effect that the respondent has borrowed Rs.70,000/- on 25.02.2001 and issued Ext.P1 cheque on the very same day. When he presented the cheque before the concerned Bank, it was dishonoured for want of sufficient funds. Ext.P2 series evidences, the fact of dishonour. Thereafter, he has issued Ext.P3 notice to the respondent for which she has not sent any reply.
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According to the respondent, she has given four cheques to one A.T. Faisal at the time of borrowing the amount of Rs.10,000/- in the year 1996.
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Faisal and even though this fact was placed before the
court below, the same was not considered.
the appellant, the probable case was placed before
the lower court by the appellant. The court below has not considered his grievances. According to PW1, who was alleged to have given Rs.72,000/- to the appellant has deposed that AT Faisal is a familiar person to him. But he is not aware about the fact of the case in CC.No.336/2001. But he admitted that CC.No.336/2001 had been transferred to the Judicial First Class Magistrate-II, Manjeri, in which he filed a counter statement against the transfer of CC.No.336/2001 to the JFCM-II, Manjeri.
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According to the learned counsel for the first respondent, the appellant is not a person, who is revealing the truth before the court and he has got inconsistent case regarding the acquaintance with AT Faisal. So from the deposition, it is quite clear that the appellant wanted to keep some secrets with him and not revealing the truth before the court. According to the first respondent, she has given Ext.P1 cheque to AT Faisal. From the deposition of PW1/ appellant, it is quite clear that he has got acquaintance with AT Faisal to whom Ext.P1 cheque alleged to have given by the first respondent. But he was very clever to depose before the court that he is not having any acquaintance with AT Faisal. So, the falsehood of the PW1 that he is not aware of AT Faisal, as stated in the counter statement filed before the Sessions Court and admitted by him in cross examination in this case would establish that the appellant wanted to make out
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frivolous case against the first respondent.
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circumstances, it is difficult to believe the evidence adduced by the appellant with regard to the above said transaction with the first respondent.
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Considering all these aspects, the lower
appellate court has held that the case advanced by the first respondent is more probable than that of the appellant and it is sufficient to rebut the presumptions drawn against the appellant. The lower appellate court has allowed the appeal and acquitted the accused by invoking Section 386(b) Cr.P.C. The lower court has relied on the evidence of the appellant and held that the burden of proving that cheque had not been issued for a debt or liability is on the first respondent/ accused. Without considering the other evidence adduced by the first respondent, the court below had convicted the accused by invoking Section 138 of the Negotiable Instruments Act. The lower appellate court has evaluated the evidence in detail and ultimately decided to hold that the first respondent is not guilty of offence, as alleged against her. I do not find any
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ground to interfere with the judgment of the court
below and it is only to be confirmed.
In the result, this appeal is dismissed.
Sd/- ANNIE JOHN, JUDGE
RKM
1 issue framed by the court
Whether the findings of the lower appellate court acquitting the accused and rebutting the presumption under Section 139 of the Negotiable Instruments Act require interference.
3 provisions across 2 enactments
T.P. Siddique
T. Devayani
Annie John
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
