Complainant appealed against acquittal in a Section 138 cheque dishonour case involving Rs.10 lakh said to be lent to her sister-in-law. The court held the complainant proved cheque issuance but failed to explain inconsistencies about the source of funds, so the accused rebutted the presumption. Acquittal upheld; appeal 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 K. BABU
WEDNESDAY, THE 13TH DAY OF MARCH 2024 / 23RD PHALGUNA, 1945
CRL.A NO. 532 OF 2022
AGAINST THE JUDGMENT DATED 23.03.2022 IN CC NO.393 OF 2017
OF JUDICIAL FIRST CLASS MAGISTRATE-I, ALUVA
APPELLANT/COMPLAINANT:
RAHIYA, AGED 49 YEARS
W/O SHRI.ISMAIL, PULICKAL HOUSE,
KUTTAMASSERRY KARA, KEEZHMADU VILLAGE,
ALUVA TALUK, ERNAKULAM, PIN – 686135.
BY ADVS.
MATHAI EAPPEN VETTATH
T.G.RAJAN
P.K. RAGHAVAN
JIMMY G
RESPONDENTS/ACCUSED & STATE:
1JASNA, AGED 40 YEARS
W/O SHRI NAJEEB, THAMARAPPALLY HOUSE,
NEAR MADAVANA STOP NETTOOR,
ERNAKULAM - 682040.
2STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM – 682031.
R1 BY ADV. NAVEEN THOMAS
R2 BY PP SRI.G.SUDHEER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A.No.532 of 2022
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“C.R.”
JUDGMENT
The challenge in this appeal is to the judgment dated 23.3.2022 in C.C.No.393/2017 passed by the Judicial First Class Magistrate-I, Aluva. The appellant is the complainant. Respondent No.1 is the accused.
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the judgment of acquittal passed by the Court below is illegal and unsustainable in law. The learned counsel, relying on Uttam Ram v. Devinder Singh Hudan and Another [2019 (5) KHC 179 : (2019) 10 SCC 287] and Jacob K.M. v. State of Kerala and Another (2020 (1) KHC 291), submitted that as the complainant established execution of Ext.P1 cheque, the mandatory presumption as provided under Section 139 of the Negotiable Instruments Act has been drawn in her favour.
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gave evidence that the accused requested a loan of Rs.10,00,000/from her. The complainant went to Keezhmadu Service Co-operative Bank, Aluva Mahilalayam Branch, pledged 5 cents of land and a house therein, obtained Rs.10,00,000/- and handed it over to the accused without discussing it with the other members of her family. PW1 stated that the accused had agreed to return the amount on the 31st day after the borrowal. After 30 days, the accused came to the complainant’s house and gave Ext.P1 cheque.
to establish that the cheque was drawn from the account maintained by the accused. Therefore, the complainant could prove the issuance of Ext.P1 cheque by the accused. A negotiable instrument, including the cheque, carries presumption in consideration in terms of Section 118(a) and under Section 139 of the Negotiable Instruments Act. A dishonour
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of cheque carries a statutory presumption of consideration. The holder of the cheque, in due course, is only required to prove that the cheque was issued by the accused and that when the same was presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability (Vide: Uttam Ram v. Devinder Singh Hudan and Another [2019 (5) KHC 179 : (2019) 10 SCC 287].
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considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. The necessary conclusion is that for rebutting such a presumption, what is needed is to raise a probable defence. All the circumstances, including the evidence adduced on behalf of the complainant, could be relied upon.
[(2001) 6 SCC 16] , a three-judge Bench of the Supreme Court, on the scope of Sections 138 and 139 of the Negotiable Instruments Act, held that the obligation of the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35], while considering the presumption under Section 118(a) of the Negotiable Instruments Act, the Supreme Court held that the defendant can prove the non-existence of a consideration by raising a probable defence. The Supreme Court observed that if the defendant is proved to have discharged the initial onus of proof showing
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that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant, who would be to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the Negotiable Instrument. The Supreme Court further observed that the burden upon the defendant of proving the non-existence of the consideration can be either directly or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies.
14. In Harbhajan Singh v. State of Punjab (AIR 1966
SC 97) , the Supreme Court, while considering the nature and scope of onus of proof which the accused was required to discharge in a criminal case, 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. In V. D. Jhingan v. State of Uttar Pradesh (AIR 1966 SC 1762), the Supreme Court held that it is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. In Rajaram S/o.Sriramulu Naidu (Since Deceased) through L.Rs. v. Maruthachalam (Since
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Deceased) through L.Rs. (2023 LiveLaw (SC) 46), the Supreme Court held that the standard of proof for rebutting the presumption is that of preponderance of probabilities, and it is open for the accused to rely on the evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
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held that it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and that the standard of proof evidently is preponderance of probabilities.
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in suspicion. Ext.P6 account statement is inconsistent with the complainant’s claim. In the cross-examination, the complainant changed her version and stated that she had taken the loan for her son, and when her son returned the money, the accused came to know about it and borrowed it. This version of the complainant contradicts her evidence in the proof affidavit, where she asserted that when the accused approached for the loan, she obtained the loan by mortgaging her landed property. The trial Court held that when suspicious circumstances surround the transaction, unless the holder of the instrument removes such suspicions by tendering satisfactory explanations, no conviction is legally permissible by banking on statutory presumptions. The accused could discharge her initial onus of proof showing that the existence of consideration was doubtful. The onus now shifted to the complainant, who is obliged to prove it as a matter of fact. In the present case, the complainant failed to prove the same. I am of the view that the accused could satisfy the court that there is a reasonable possibility of the non-existence of the consideration. The learned counsel for the accused further contended that the accused, having been acquitted by the trial Court, is entitled to the presumption of innocence and further that the accused, having
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secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. The learned counsel for the accused also submitted that if reasonable conclusions are possible based on the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.
Crl.A.No.532 of 2022
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to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
For the above-mentioned reasons, the appeal lacks merit, and accordingly, it is dismissed. Sd/- K.BABU Judge
TKS
3 issues framed by the court
Whether the complainant proved execution of Ext.P1 cheque by the accused, drawing the statutory presumption under Section 139 NI Act.
Whether the accused rebutted the presumption of consideration to the standard of preponderance of probabilities.
Whether the appellate court should interfere with the trial court's acquittal.
Colour shows how this judgement treated each authority
Uttam Ram v. Devinder Singh Hudan and AnotherRelied on¶10
[2019 (5) KHC 179 : (2019) 10 SCC 287] · Who else cites this
Jacob K.M. v. State of Kerala and AnotherRelied on¶6
(2020 (1) KHC 291)
Hiten P. Balal v. Bratindranath BanerjeeReferred¶13
[(2001) 6 SCC 16] · Who else cites this
Bharat Barrel & Drum Mfg. Co. v. Amin Chand PayrelalRelied on¶13
[(1999) 3 SCC 35] · Who else cites this
Harbhajan Singh v. State of PunjabReferred¶14
(AIR 1966 SC 97) · Who else cites this
V. D. Jhingan v. State of Uttar PradeshReferred¶14
(AIR 1966 SC 1762) · Who else cites this
Rajaram S/o.Sriramulu Naidu (Since Deceased) through L.Rs. v. Maruthachalam (Since Deceased) through L.Rs.Referred¶14
(2023 LiveLaw (SC) 46)
M.S.Narayana Menon v. State of KeralaReferred¶16
[(2006) 6 SCC 39) · Who else cites this
Chandrappa and others v. State of KarnatakaApplied¶18
[(2007) 4 SCC 415] · Who else cites this
4 provisions across 2 enactments
Rahiya
Jasna
State of Kerala
K. Babu
As recorded by the court registry
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K. Babu
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