Abdulrahiman Haji v. K. Sulaiman and State of Kerala

Crl. Appeal No. 307/2007 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 24[TH] 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: - 1 K.SULAIMAN, S/O. MOIDEENKUNJI, KOLPE HOUSE, P.O.KONALU, VIA UPPINANGADI, KARNATAKA STATE. - 2 STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 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 24[th] 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 2. The appellant is the complainant and complaint was filed on the allegation that the accused has obtained an amount of Rs.2,60,000/from the complainant as loan and subsequently, after repeated demands, the accused issued cheque dated 07.10.2002 for Rs. 2,60,000/- to the complainant and when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, the complainant was examined as PW1 and Exhibits P1 to P5 were marked. From the side of the accused, DW1 examined and Exhibits D1 to D3 were marked. After considering the evidence on record and hearing both sides, the trial court found that the 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. 4. Heard Sri. Balu Tom, the learned counsel representing Sri. N. Ramesh Chander, the learned counsel for the appellant, Sri. Amal Amir Ali, learned Amicus curiae for the first respondent and Sri. Vipin Narayan, the learned Senior Public Prosecutor for the second respondent, State of Kerala. 5. The learned counsel for the appellant argued that the trial court has not appreciated the impact of Exhibits D1 and D2 agreements in the correct perspective and that the trial court ought to have found that the said agreements have no connection with the transaction alleged in this case. It is argued that the finding of the trial court that the accused has succeeded in rebutting the statutory presumptions in favour the complainant, is not legally sustainable. 6. When the accused/first respondent failed to appear in spite of service of notice, this court appointed Adv. Amal Amir Ali as Amicus curiae and the learned Amicus curiae argued that the evidence of PW1 in cross examination and Exhibits D1 to D3 would clearly show that the evidence of PW1 that he advanced a loan of Rs.2,60,000/- to the Crl. Appeal No. 307/2007 : 4 : 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. 7. It is pertinent to note that the complainant has not disclosed the date on which he advanced the amount to the accused in the complaint or the chief affidavit. In cross examination, PW1 stated that he is conducting timber business and that he advanced the amount to the accused 3 months prior to the receipt of Exhibit P1 cheque dated 07.10.2002. In the beginning of the cross examination, PW1 categorically stated that he has not conducted any timber business with the accused and that he never had any transaction with the son of the accused. But, when the learned counsel for the accused confronted PW1 with Exhibits D1 and D2, he admitted his signature in the said documents and the fact that Exhibit D1 is an agreement executed between PW1 and the son of the accused. PW1 further admitted that Exhibit D2 is an agreement executed between the accused and the complainant in connection with a timber transaction. 8. The specific case of the accused is that the signed blank cheque entrusted to the complainant in connection with Exhibit D2 agreement is misused for filing this case. It is worthwhile to note that the amount due from K.S Jabbar, the son of the accused, to the complainant and his 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. 9. The evidence of PW1 in cross examination clearly shows that PW1 has attempted to suppress the transactions as per Exhibits D1 and D2 and he admitted the said transactions only when he was confronted with Exhibits D1 and D2. In cross examination, PW1 denied issuance of a lawyers notice to the son of the accused on the basis of Exhibit D1 agreement, on 15.10.2002, through Adv. B. Karunakaran, when he was examined before the trial court on 23.06.2005 and subsequently when PW1 was recalled and examined on 22.07.2005, he admitted the issuance of Exhibit D3 notice dated 15.10.2002, through Adv. B. Crl. Appeal No. 307/2007 : 6 : 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. 10. The learned Amicus curie cited the decision of the Honourable Supreme Court in _**Rajesh v. Ajay Sing**_ [AIR 2023 SC 5018] to show that the standard of proof to discharge the evidential burden on the accused is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of the accused and that the accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt and that the accused must meet the standard of preponderance of probabilities similar to a defendant in a civil proceeding. Crl. Appeal No. 307/2007 : 7 : 11. In **Bharat Barrel & Drum Mfg. Co. v. Amin Chand 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. ## 12. 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 13. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in **M.S.Narayana Menon v.** **State of Kerala (2006 (6) SCC 39),** and it was held that if some material is brought on record consistent with the innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. 14. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and 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. 15. Therefore, in the absence of any satisfactory evidence to show that Exhibit P1 cheque was issued for discharging a legally enforceable debt from the side of the accused to the complainant, I find no reason to interfere with the finding of the trial court that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and in that circumstance, I find that this appeal, which is devoid of merit, is liable to be dismissed. In the result, this appeal is dismissed. sd/- **JOHNSON JOHN, JUDGE.** Rv