Allowed

Jameela Beevi v. Unnikrishnapillai

Kerala HC5 Jun 2023CRL.A/1218/2016

Case brief

AI extract

What is this about?

High Court set aside Sessions Court's acquittal in cheque dishonour case. Found prosecution proved execution of cheque and no rebuttal was offered by accused. Modified sentence: reduced immediate imprisonment, enhanced fine to Rs.1.75 lakh.

What did the court decide?

Impugned judgment set aside. Respondent convicted under Section 138 NI Act. Sentence: reduce immediate imprisonment, fine increased to Rs.1,75,000/-.

Jameela Beevi Vs Unnikrishnapillai — Cheque Dishonour | Kerala HC (2023)

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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 V.G.ARUN

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MONDAY, THE 5^TH DAY OF JUNE 2023 / 15TH JYAISHTA, 1945

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CRL.A NO. 1218 OF 2016

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CRA 241/2011 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,

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KOLLAM

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ST 391/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV,

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KOLLAM

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APPELLANT/S:

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JAMEELA BEEVI AGED 74 YEARS, D/O SALIHA UMMA, ARATTIL HOUSE, CHATHINAKULAM, CHANDANATHOP P.O, KOLLAM. BY ADV SRI.C.RAJENDRAN

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RESPONDENT/S:

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1 UNNIKRISHNAPILLAI PUTHENVILA VEEDU, MYTHREE NAGAR, CHATHINAMKULAM, CHANDANATHOPE P.O, KOLLAM 691 014. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 691 013. BY ADVS. SMT.ANITHA RAVINDRAN SMT.T.RESHMA

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OTHER PRESENT:

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SR.PP.RENJITH GEORGE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

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24.03.2023, THE COURT ON 05.06.2023 DELIVERED THE FOLLOWING:

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Crl.Appeal No.1218 of 2016

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JUDGMENT

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Dated this the 05^th day of June, 2023

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Appellant is the complainant in S.T.No.391 of 2009 of the Judicial First Class Magistrate Court-IV, Kollam. The complaint was filed, alleging commission of offence under Section 138 of the N.I.Act by the first respondent. In her complaint, the appellant alleged that the first respondent had borrowed Rs.1,50,000/- from her, promising to repay the money in two months. Later, the first respondent issued Ext.P1 cheque dated 20.09.2007, in discharge of the liability. The cheque, on presentation, was dishonoured for insufficiency of funds. Although statutory notice was issued to the first respondent, informing him about the dishonour and requiring him to pay the amount, neither was any reply sent nor the amount paid.

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The trial court, on appreciation of

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Crl.Appeal No.1218 of 2016

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evidence and consideration of the legal contentions, found the first respondent guilty and thereupon, convicted and sentenced him to undergo simple imprisonment for three months and directed to pay fine of Rs.1,50,000/-, with default sentence of 20 days. The fine, if remitted, was directed to be paid as compensation to the appellant under Section 357 Cr.P.C.

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Aggrieved by the conviction and sentence, the first respondent preferred Crl.Appeal No.241 of 2011 before the Additional Sessions Court (Adhoc)-II, Kollam. The appellate court, on re-appreciation of evidence, found the complainant to have failed in proving execution of the cheque in his favour. Consequently, the appeal was allowed and the accused, acquitted.

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Learned Counsel for the appellant

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contended that the reasoning adopted by the court below is patently wrong. It is submitted that the

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appellant had proved the execution of Ext.P1 cheque in his favour and burden was on the first

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Crl.Appeal No.1218 of 2016

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respondent to rebut the presumption under Section

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Surprisingly, based on certain suggestions made to the appellant during cross-examination, the court below held that the execution was not proved and hence, the presumption under Section 139 is not attracted. Such conclusion was arrived at on the basis of the appellant's oral testimony that her daughter had lent money to various persons and after she died in 2008, some of the complaints instituted by the deceased daughter, were prosecuted by the appellant, after transposing herself as the complainant. It is contended that, by focusing on that portion of the testimony alone, the court below omitted to take note of the appellant's categoric statement that the cheque was handed over to her directly by the first respondent. The appellant also stated that she had worked abroad for 31 years, was a business woman and had sufficient funds to advance an amount of Rs.1,50,000/-. The fact that no reply was sent by the first respondent nor any

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explanation offered during his questioning under Section 313 Cr.P.C were also not considered.

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Reliance was placed on the decision in Bir Singh v Mukesh Kumar [(2019) 4 SCC 197] to contend that, even a blank cheque leaf voluntarily signed and handed over by the accused towards some payment would attract the presumption under Section 139 and mere filling up of the cheque by the payee would not invalidate the cheque or amount to alteration. Referring to the decisions in Kalamani Tex (M/s.) and another v. P.Balasubramanian [(2021) 5 SCC 283] and

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Sumeti Vij v. M/s.Paramoung Tech Fab Industries

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[AIR 2021 SC 1281], it was argued that, although the accused can rebut the presumption under

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Section 139, based on preponderance of probabilities, no such attempt was made by the first respondent.

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Learned Counsel for the first respondent

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contended that, the lower court having re-

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Crl.Appeal No.1218 of 2016

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appreciated the evidence and found the appellant to have failed to prove the execution of the cheque, it will be inappropriate for this Court to interfere with the judgment of acquittal. According to the Counsel, the testimony of the appellant would show that the transaction was actually between the appellant's daughter and the first respondent. The appellant also failed to prove her means to advance an amount of

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Rs.1,50,000/-.

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complaint, the appellant had clearly stated that Ext.P1 cheque was issued by the first respondent

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towards discharge of the liability of Rs.1,50,000/-. She reiterated the allegation in her testimony as PW1. The respondent failed to bring out any discrepancy or inconsistency by cross-examining the appellant. Moreover, the respondent did not put forth his version during the questioning under Section 313 Cr.P.C. All that the first respondent did was to put certain

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suggestions to the appellant during her crossexamination. The suggestions were to the effect that a signed blank cheque entrusted by the first respondent with the appellant's daughter was misused by the appellant after her daughter's death. The appellant categorically denied the allegation and stated that the amount was borrowed from her and the filled and signed cheque was handed over to her by the respondent himself. She also stated that being a business woman, she had sufficient money with her for advancing Rs.1,50,000/-.

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It is settled law that, mere suggestions in cross-examination is not a substitute for evidence and cannot be the basis for the court to hold the presumption under Section 139 to have been rebutted. For rebutting the presumption, the accused should make out a probable case, either based on preponderance of probabilities or discrepancies and inconsistencies in the complainant's case. In the case at hand, no such

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inconsistency or discrepancy was brought out by the first respondent and no attempt was even made to make out a probable defence.

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While a judgment of acquittal should not

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be upset even if a different view is possible, that restriction does not apply in its full rigor for the offence under Section 138 ( see Rohitbhai

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Jivanlal Patel v. State of Gujarat [AIR 2019 SC

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1876] ). The casual manner in which the judgment of the trial court was upset by the Sessions Court, solely based on some suggestions in the cross-examination of the complainant, leaves this Court with no alternative than to interfere with the impugned judgment. At the same time, there is no justification in the trial court having sentenced the first respondent to undergo simple imprisonment for three months. In my opinion, it will be more appropriate to reduce the sentence and enhance the fine amount, considering that the cheque is of the year 2009.

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Crl.Appeal No.1218 of 2016

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In the result, the judgment in Crl.A.No.241 of 2011 is set aside. The first respondent is found guilty of the offence under Section 138 of the N.I.Act. Consequently, he is sentenced to undergo simple imprisonment till the rising of the court and pay fine of Rs.1,75,000/-, in default of which the first respondent shall undergo simple imprisonment for three months. The fine, if remitted, shall be paid as compensation to the appellant under Section 357(3) of Cr.P.C. The first respondent shall remit the fine and appear before the trial court for undergoing the sentence of imprisonment within two months of receipt of a copy of this judgment.

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Sd/-

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V.G.ARUN JUDGE

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Scl/

Jameela Beevi v. Unnikrishnapillai

Case brief

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Jameela Beevi v. Unnikrishnapillai

Case brief

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