The High Court of Kerala dismissed an appeal against acquittal where the accused was found not guilty of cheque dishonour. The court upheld the trial court's finding that the accused rebuffed statutory presumptions regarding the consideration for the cheque.
The appeal was dismissed; the judgment dated 30.08.2006 acquitting the accused was affirmed.
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. 827/2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 CRL.A NO. 827 OF 2007
ORDER DATED 30.08.2006 IN ST NO.695 OF 2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI
APPELLANT/COMPLAINANT:
ABDUL RAHIMAN
PALLIYALIL VEEDU, PARAKKULAM, CHEKKODE DESOM,, KUMARANELLUR AMSOM, OTTAPALAM TALUK,PALAKKAD DIST. BY ADV SRI.RAJESH SIVARAMANKUTTY
RESPONDENTS/ACCUSED/STATE:
1 NASSAR, KULARIKUHIYIL VEEDU, UMMATHOOR DESOM,, ANAKKARA AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS. SRI.N.GOPINATHA PANICKER SRI.C.KHALID SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID
SRI. VIPIN NARAYAN, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.04.2024, THE COURT ON 12.04.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 827/2007
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JOHNSON JOHN, J.
Crl. Appeal No. 827 of 2007
-------------------------------------------------------Dated this the 12th day of April, 2024.
JUDGMENT
This appeal is filed against the judgment dated 30.08.2006 in S.T. No. 695 of 2004 of the Judicial First Class Magistrate, Pattambi, 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
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Crl. Appeal No. 827/2007 : 4 :
the trial court ignored the statutory presumptions in favour of the complainant under Sections 118 and 139 of the NI Act.
" �തി�ുᨱ ��എᩙ᪓�മരു�മകുᨪ ��ഞാ�ുᨪ ��ക�ടി�ുᨱ �ണ്�എടി��ടി�. ്ᩚ�തി� എുᨪ �ᨪ�ണ്��ണ്�തിരു�ുᨪ �്ᩦ തി�. എᩙ᪓�മരു�മകുᨪ �തി��ണ്� ക�ടി�ᨪ�ുᨪ �ᩂ. 38,000/- രു��ുᨱ �ണ്�ᩙ᪓ ക�ടി�ᨪ�ുᨪ �്ᩦ തി�. ഈ cheque �ക�രു�ഉ്ᩦ സം�്ᩅ �ുᨱ �ണ്�ᩙ᪓ ക�ടി�ᨪ�ുᨪ �്ᩦ തി�. എുᨪ �ᨪ� �തി� 38,000/- രു��തിരു�ുᨪ �ᩂ. ഇതി�ക�ടി�ᩙ᪓തിവേ�ᩙ᪓ 38,000/തിരു�ുᨪ �്ᩤ".”
that the complainant has no definite case as to whether the amount is due to the complainant or the son-in-law. PW1 denied the suggestion that he misused the cheque entrusted as security to the son-in-law.
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However, he admitted that the first party in Exhibit D1 agreement is his son-in-law and the second party is the accused. PW1 further admitted that there is nothing in Exhibit D1 to show that any amount is due to the complainant or that the complainant is authorised to receive any amount from the accused as per the said agreement.
[(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
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to the complainant. In Harbhajan Singh v. State of Punjab (AIR 1966 SC 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
(i) Once the execution of cheque is admitted S.139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
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(ii) The presumption under S.139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
v. State of Karnataka [(2007 (4) SCC 415)] laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following manner:
"(1) An appellate court has full power to review, re - appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the
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evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc, are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available 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.”
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from the accused to the complainant and that Exhibit P1 cheque was entrusted as security in connection with Exhibit D1 agreement to the son-in-law of the complainant and the same was misused by the complainant after materially altering the same by inserting the name of the complainant as payee in the cheque without the knowledge and consent of the accused. It is pertinent to note that the evidence of PW1 in cross examination would clearly show that he has no definite case as to whether the amount is due to the complainant or to his son-in-law and further, it is in evidence that PW2, the son in law of the complainant, was abroad from 09.03.2003 to 22.07.2005 and therefore, considering the facts and circumstances I find no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and that there is no satisfactory evidence to show that Exhibit P1 cheque was issued in discharge of a legally enforceable debt from the side of the accused to the complainant and in that circumstance, I find that this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.
sd/- JOHNSON JOHN, JUDGE.
Rv
3 issues framed by the court
Whether the appellate court can interfere with the trial court's finding of acquittal under Section 138 NI Act when the accused successfully rebutted statutory presumptions.
Whether the accused satisfied the preponderance of probabilities standard by proving lack of consideration and material alteration of the cheque.
Whether the appellate court was justified in upholding the acquittal and dismissing the appeal against acquittal.
Colour shows how this judgement treated each authority
Bharat Barrel & Drum Mfg. Co. v. Amin Chand PayrelalReferred¶43
[(1999) 3 SCC 35] · Who else cites this
Harbhajan Singh v. State of PunjabReferred¶45
AIR 1966 SC 97 · Who else cites this
M.S.Narayana Menon v. State of KeralaReferred¶46
(2006 (6) SCC 39) · Who else cites this
Basalingappa v. MudibasappaReferred¶47
[(2019) 5 SCC 418] · Who else cites this
Chandrappa and others v. State of KarnatakaReferred¶55
[(2007 (4) SCC 415)] · Who else cites this
3 provisions across 2 enactments
ABDUL RAHIMAN
NASSAR
STATE OF KERALA
JOHNSON JOHN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
