Dismissed

Abdul Vahab v. Mohammed Abdul Samad

Kerala HC18 Nov 2020CRL.A/148/2018

Case brief

AI extract

What is this about?

This court upheld an acquittal in a criminal appeal filed by a complainant challenging the discharge of the accused under Section 138 of the Negotiable Instruments Act. The High Court held that serious inconsistencies and improbabilities in the complainant's version regarding the execution, consideration, and source of the large loan amount rebutted the statutory presumptions available to him unde

What did the court decide?

The criminal appeal was held to fail. The order of acquittal acquitting the accused was affirmed. No interference.

Abdul Vahab Vs Mohammed Abdul Samad — Cheque Dishonour | Kerala HC (2020)

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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 P.SOMARAJAN

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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CRL.A.No.148 OF 2018 (G)

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AGAINST THE JUDGMENT IN CC No.1529/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, MALAPPURAM

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Crl.L.P. 42/2018 OF HIGH COURT OF KERALA

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APPELLANT/COMPLAINANT:

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ABDUL VAHAB, S/o ALAVI, OTTAPILAKKAL HOUSE, PULIKKAL, KONDOTTY, MALAPPURAM DISTRICT.

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BY ADV. SMT. REMANI T.B.

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RESPONDENTS/ACCUSED AND STATE:

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1 C. MOHAMMED ABDUL SAMAD, S/o VEERANKUTTY MASTER, NEAR NEDIYIRUPU SERVICE CO-COPERATIVE BANK LTD, KODANGADU, KONDOTTY, MALAPPURAM DISTRICT.

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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 ADVS. SRI.K.K.DHEERENDRAKRISHNAN

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SRI.D.FEROZE SRI.S.RAJEEV SRI.V.VINAY R2 BY PUBLIC PROSECUTOR SRI. K.B. UDAYAKUMAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2020.THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Appeal No.148 of 2018

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JUDGMENT

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An acquittal of accused for the alleged offence

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under Section 138 of the Negotiable Instruments Act brought under challenge on several grounds.

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The learned Magistrate took reliance on several

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judgments of the Apex Court as well as this Court viz.,

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(1) Abdul Khader v. Zubair [2015(4) KLT SN 135] regarding burden of proof (2) Divakaran v. State of Kerala [2016(4) KHC 901] regarding the consequence of non-mentioning of date of issuance of cheque and date of transaction in the demand notice (3) Padmanabhan v.

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Vasudevan Namboothri [2010(3) KLT 216] and (4)

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Bhaskaran Nair v. Mohanan [2009(3) KLT 580] regarding the presumption available under Section 139 of N.I Act

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(5) K.Prakashan v. P.K.Surenderan [(2008) 1 SCC 258], K.K.Divakarann v. State of Kerala [ILR 2016(4) Ker.

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643] regarding the presumption available both under Sections 118 and 139 of N.I. Act

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(6) Union of India (UOI) v. Pramod Gupta [AIR 2005 SC 3708] regarding the effect of 'may presume' and 'shall presume' and (7) M.S.Narayana Menon v. State of Kerala

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Crl.Appeal No.148 of 2018

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[MANU/SC/2881/2006 = AIR 2006 SC 3366], Johnson Scaria v. State of Kerala [2006 (4) KLT 290], M/s.Kumar

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Exports v. M/s. Sharma [AIR 2009 SC 1518] regarding presumption available under Section 118 and 139 and its rebuttable nature.

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Going by the facts and evidence involved in the case, the decision rendered by the Apex Court in M.S.

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Narayana Menon v. State of Kerala (AIR 2006 SC 3366) assumes importance. It is a case wherein several improbabilities were brought out during the cross examination of the complainant regarding the due execution of the alleged cheque in question and its consideration. The offence under Section 138 of the N.I. Act is really a statutorily created offence so as

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to give more rigidity and reliability in the user of a negotiable instrument in commercial transactions. The principle is very much settled by the Apex Court that the standard of proof is resting on the preponderance of probabilities especially in the matter of rebutting

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the probable presumption either under Section 118 (a) or under Section 139 of the N.I.Act which is a clear

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deviation from the general rule to extend criminal

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Crl.Appeal No.148 of 2018 4

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liability, presumably on the reason that it is only a statutorily created offence. Existence of

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inconsistencies and improbabilities beyond the scope of probable explanation would itself rebut the presumption available under Section 118(a) and 139 of the N.I.Act.

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It is a case wherein very serious

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inconsistencies and improbabilities were brought out

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beyond the scope of probable explanation. Firstly, a huge sum of Rs.9 lakhs advanced without having a current urgency or need. Admittedly, the said amount was given for expanding an existing business even according to the complainant. The accused is not a close relative or friend of the complainant. What actually prompted him to advance such a huge amount that too without satisfying an emergent necessity, requirement or need would itself show its falsity. Secondly, the complainant did not have a probable or acceptable explanation how he had collected such a huge amount. His version that he had borrowed an amount of

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Rs.4 lakhs from one of his friends for that purpose

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would itself show its high improbabilities. Why he had

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borrowed an amount of Rs.4 lakhs for the purpose of

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Crl.Appeal No.148 of 2018 5

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advancing a loan of Rs.9 lakhs, that too, without

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satisfying any urgent need or unavoidable situation would itself show its falsity. He did not reveal the identity of the friend from whom he had borrowed the

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said amount of Rs.4 lakhs. The further version that the

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said amount was kept by him for the purpose of purchasing a property would further show its high improbability. It is not explained why he had given the said amount to the accused, without satisfying any urgency or personal requirement.

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