The High Court dismissed the appellant's criminal appeal challenging the acquittal of the accused in a cheque dishonour case. The court upheld the trial court's finding that the accused successfully rebutted statutory presumptions, noting the complainant's suppressed transactions and lack of reliable evidence regarding the debt.
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.
Crl. Appeal No. 307/2007 : 1 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946 CRL.A NO. 307 OF 2007
JUDGMENT DATED 25.11.2006 IN CC NO.224 OF 2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KASARAGOD
APPELLANT/COMPLAINANT:
ABDULRAHIMAN HAJI
S/O.KUNJIMAYINKUTTY HAJI,, MALIKAL VALAPPIL HOUSE,, P.O.ADHOOR, KASARAGOD TALUK.
BY ADV SRI.M.RAMESH CHANDER
RESPONDENTS/ACCUSED AND STATE:
SRI. VIPIN NARAYAN - SR. PUBLIC PROSECUTOR SRI. AMAL AMIR ALI - AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE
COURT ON 24.05.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 307/2007
: 2 :
JOHNSON JOHN, J.
--------------------------------------------------------Crl. Appeal No. 307 of 2007
-------------------------------------------------------Dated this the 24th day of May, 2024.
JUDGMENT
This appeal is filed against the judgment dated 25.11.2006 of the Judicial First Class Magistrate-II Kasaragod in C.C. No. 224 of 2005, whereby the accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and acquitted under Section 255(1) Cr.P.C
Crl. Appeal No. 307/2007 : 3 :
accused has succeeded in rebutting the statutory presumptions in favour of the complainant and that the complainant has not succeeded in proving that the cheque was issued by the accused in discharge of any debt or liability and therefore, the accused was found not guilty of the offence under Section 138 of the NI Act.
Crl. Appeal No. 307/2007
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accused 3 months prior to 07.10.2002, the date shown in Exhibit P1 cheque, is not at all reliable and there is no valid grounds to interfere with the findings in the impugned judgment.
Crl. Appeal No. 307/2007 : 5 :
partner Mahim Badsha Haji as per Exhibit D1 agreement is Rs. 2,60,000/- and the said agreement is dated 25.03.2002. Therefore, it can be seen that the amount shown in Exhibit P1 cheque and Exhibit D1 agreement are the same. Mahim Badsha, the first party in Exhibit D1 agreement, is examined as DW1 and his evidence shows that the complainant was his partner in the timber business. DW1 also admitted his signature in Exhibit D2 agreement for purchasing timber from the accused. According to DW1, at the time of executing Exhibit D2 agreement, they paid Rs.2,00,000/- to the accused and the accused has not so far supplied the timber or returned the money. According to DW1, he along with the complainant paid Rs.2,60,000/- to the son of the accused as loan and that Exhibit D1 is an agreement executed in that connection.
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Karunakaran to K. S. Jabbar, the son of the accused in connection with Exhibit D1 agreement. The complainant, when examined as PW1, failed to give any satisfactory explanation for advancing a loan of Rs.2,60,000/- to the accused when amount is due as per Exhibit D2 agreement from the accused to the complainant. It is also pertinent to note that the amount due from the son of the accused to the complainant and his partner as per Exhibit D1 agreement dated 25.03.2002 and the amount shown in Exhibit P1 cheque are the same and in that circumstance, I find no reason to disagree with the finding of the trial court that the evidence of PW1 that he advanced a loan of Rs.2,60,000/- to the accused 3 months prior to 07.10.2002, is not at all reliable and that the case put forward by the accused is more probable.
Crl. Appeal No. 307/2007
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Payrelal [(1999) 3 SCC 35], the Honourable Supreme Court held that the non existence of consideration for the cheque can be proved by raising a probable defence and if it is shown that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant.
97), the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities
Crl. Appeal No. 307/2007 : 8 :
that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence.
In the result, this appeal is dismissed.
sd/-
JOHNSON JOHN, JUDGE.
Rv
3 issues framed by the court
Whether the appellant-complainant successfully proved that the cheque was issued in discharge of a legally enforceable debt or liability?
Whether the accused successfully rebutted the statutory presumptions under Sections 118 and 139 of the NI Act?
Whether the trial court's finding of acquittal based on preponderance of probabilities was correct?
Colour shows how this judgement treated each authority
Rajesh v. Ajay SingReferred¶42
AIR 2023 SC 5018 · Who else cites this
Bharat Barrel & Drum Mfg. Co. v. Amin Chand PayrelalReferred¶46
(1999) 3 SCC 35 · Who else cites this
Harbhajan Singh v. State of PunjabReferred¶48
AIR 1966 SC 97 · Who else cites this
M.S.Narayana Menon v. State of KeralaReferred¶49
2006 (6) SCC 39 · Who else cites this
4 provisions across 2 enactments
ABDULRAHIMAN HAJI
K.SULAIMAN
STATE OF KERALA
JOHNSON JOHN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
