Appeal filed by payee against acquittal of cheque issuer for dishonour under Section 138 NI Act. High Court held presumption validly rebutted by evidence of prior cheque clearing, dismissing the appeal.
The criminal appeal filed by the applicant under Section 378 Cr.P.C. was dismissed.
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 MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944 CRL.A NO.41 OF 2010
AGAINST THE ORDER/JUDGMENT IN CRL.APPEAL NO.417 OF 2007 OF THE ADDITIONAL SESSIONS COURT (ADHOC-II)KASARAGODE
Crl.L.P.No.8 OF 2010 OF HIGH COURT OF KERALA
APPELLANT:
B.M.DINESHA AGED 58 YEARS S/O.KOTAGA GURIKAR, NEAR SRI.KASHI MUTT, MANJESWAR, HOSABETTU VILLAGE, KASARAGOD TALUK & DISTRICT. BY ADV SRI.SURESH KUMAR KODOTH
RESPONDENTS:
1 PRAVEEN KUMAR AGED 39 YEARS S/O.LATE BABU, R/AT.NEW HOUSE, NEAR BAKERY, THACHIDAPADAVU, POST VORKADY, KASARAGOD TALUK AND DISTRICT. 2 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SMT. MAYA M.N- P.P
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 17.06.2022, THE COURT ON 28.06.2022 DELIVERED THE FOLLOWING:
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J U D G M E N T
Ajithkumar, J
This is an appeal filed under Section 378(2)(b) read with 378(3) of the Code of Criminal Procedure 1973. Leave for appeal was granted as per order dated 06.01.2010.
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order of sentence. The Additional Sessions Court accepted the contentions of the respondent and held that he had succeeded in rebutting the presumption under Section 139 of the N.I Act with respect to Ext.P1 cheque. Resultantly, the respondent was acquitted.
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for launching a prosecution for the offence under Section 138 of the Act have been complied with. Case of the 1st respondent was that he borrowed only Rs.5000/- and Ext.P1 was a cheque issued as a security at that time. He further would contend that the appellant paid Rs.5000/ - to him through a cheque and in order to suppress that fact, the appellant while examined as PW1 denied issuance of such a cheque to the respondent. The definite assertion of the appellant is that he had only one transaction with the 1st respondent and that is payment of Rs.13000/- covered by Ext.P1 cheque. The 1st respondent brought on record Ext.D1 ledger extract from the Bank and the oral testimony of DW2, an official from the Bank to show that such a cheque for Rs.5000/- was issued by the appellant to him.
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the evidence let in on the side of either the prosecution or the defendants.
court that he borrowed only Rs.5000/- which was paid by the appellant through a cheque and the same was repaid, but Ext.P1 which was given as a security was misused by the appellant. This defence version was denied by the appellant. During his examination, PW1 categorically stated that other than the transaction covered by Ext.P1, he did not have any transaction with the 1st respondent. DW2 proved the contents of Ext.D1 which is to the effect that a cheque for Rs.5000/- issued by PW1 was encashed by the 1st respondent. The same fact was deposed by DW1 in Court. In the light of that evidence, it can only be said that there was such a transaction between the appellant and the 1st respondent. That fact stands in contradiction to the case of the appellant. On the other hand the aforesaid explanation placed by the 1st respondent before the court is convincing.
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prosecution. The evidence on record improbabilised the case set up by the appellant. Apart from the presumption under Section 139 of the N.I Act, there is absolutely no evidence to prove passing of consideration for Ext.P1 cheque. When the evidence came on record, established that what PW1 stated regarding the transaction underlying Ext.P1 is incorrect whereas the case setforth by the 1st respondent is more
probable, the necessary conclusion shall be that the presumption under Section 139 of the N.I.Act stands confuted. The inevitable conclusion therefore is that the prosecution of the 1st respondent for the offence under Section 138 of the N.I Act is bound to fail. Findings entered into by the Additional Sessions Court in that regard are correct and not liable to be interfered with. Hence the appeal
is dismissed.
Sd/P.G. AJITHKUMAR JUDGE
PV
2 issues framed by the court
Whether the presumption under Section 139 of the Negotiable Instruments Act stands rebutted by evidence showing a prior transaction where the same amount was received via a cheque.
Whether the appellate court can interfere with the acquittal of the appellant where the evidence on record improbabilised the prosecution case.
6 provisions across 2 enactments
B.M. Dinesha
Praveen Kumar
State of Kerala
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
