High Court of KeralaSingle Judge2023-06-05Appeal allowed in part; the Sessions Court’s ac...

JAMEELA BEEVI v. UNNIKRISHNAPILLAI PUTHENVILA VEEDU, MYTHREE NAGAR, CHATHINAMKULAM, CHANDANATHOPE P.O, KOLLAM; State of Kerala represented by Public Prosecutor, High Court of Kerala

Case / Petition Number:Crl.Appeal No. 1218 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2023-06-05
Court Decision / Holding: The High Court set aside the judgment of acquittal in Crl.A. No. 241 of 2011 and held the first respondent guilty of the offence under Section 138 NI Act. The respondent was sentenced to simple imprisonment till the rising of the court and to pay a fine of Rs. 1,75,000/-, with default imprisonment of three months. The fine, if remitted, is to be paid as compensation to the appellant under Section 357(3) Cr.P.C. The respondent was directed to remit the fine and appear before the trial court within two months for serving the sentence.
Final Disposition: Appeal allowed in part; the Sessions Court’s acquittal of the first respondent under Section 138 NI Act is set aside; the respondent is convicted under Section 138 NI Act and sentenced as stated above. The matter is to be executed with instruction to remit fine and to appear before the trial court for the sentence within two months of copy of judgment being received.

Parties to the Case

Appellants / Petitioners

JAMEELA BEEVI aged 74 years, d/o SALIHA UMMA, ARATTIL HOUSE, CHATHINAKULAM, CHANDANATHOPE P.O, KOLLAM

Respondents

UNNIKRISHNAPILLAI PUTHENVILA VEEDU, MYTHREE NAGAR, CHATHINAMKULAM, CHANDANATHOPE P.O, KOLLAM 691014
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 691013

Legal Representation & Advocates

Counsels for Petitioners

• Sri C. Rajendran

Counsels for Respondents

• Smt. Anitha Ravindran
• Smt. T. Reshma
• Sr. P.P. Renjith George

Case Synopsis & Summary

The appeal concerns a prosecution under Section 138 of the Negotiable Instruments Act (N.I. Act) initiated by Jameela Beevi, the complainant, against the first respondent (Unnikrishnapillai Puthenvila Veedu) for allegedly issuing a cheque to discharge a debt of Rs. 1,50,000, which bounced on presentation. The Magistrate convicted the respondent and sentenced him to imprisonment for three months with a Rs. 1,50,000 fine, directing the fine to compensate the appellant under Section 357 Cr.P.C. The Additional Sessions Court (Ad hoc-II), Kollam, on re‑appreciation, acquitted the respondent, finding the execution of the cheque not proved and thus not attracting the presumption under Section 139. The appellant challenged this acquittal on the ground that Ext. P1 was indeed issued by the respondent, and mere cross‑examination suggestions cannot negate the presumption; she also contended that she had direct testimony that the cheque was handed over by the respondent and that she is a businessperson with means. The High Court reversed the Sessions Court, noting that a judgment of acquittal should not be upheld where the evidence is misconstrued, and restored the conviction, enhancing scrutiny of the evidence and applying the presumption under Section 139 with a higher emphasis on the complainant’s testimony. It ultimately set aside the acquittal and convicted the respondent under Section 138 NI Act, with a modified sentence.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881Section 313 Cr.P.C.Section 357 Cr.P.C.

Legal Doctrines & Maxims

Presumption under Section 139 NI Act arises on the execution of a cheque and is rebuttable; the accused may challenge it by preponderance of probabilities
Mere suggestions in cross-examination cannot substitute for evidence and cannot on their own rebut the presumption under Section 139
Judgment of acquittal should not be interfered with lightly, but for offences under Section 138 NI Act, a court may interfere where the trial court’s approach is patently flawed; the court should not uphold an acquittal if the evidence is misconstrued (Rohitbhai Jivanlal Patel v. State of Gujarat)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext. P1 cheque was issued by the first respondent towards discharge of the liability of Rs. 1,50,000; the presumption under Section 139 NI Act should operate given the signed cheque presented for payment. She argues that the trial court’s conclusion that execution was not proved was erroneous, particularly since her own testimony stated the cheque was handed over by the respondent. She asserts that cross‑examination suggestions cannot negate evidence or undermine the presumption, and she points to her means and conduct as a businesswoman capable of advancing the loan. Citing Bir Singh v. Mukesh Kumar and other authorities, she argues that the mere insertion of figures by the payee does not discharge the presumption. The court is urged to consider that the acquittal was not justified and to restore the conviction with appropriate sentence.

Contentions of Respondents

The respondents contend that the trial court’s finding that the cheque execution was not proved should be sustained; the transaction allegedly involved the appellant’s daughter, and the applicant’s own testimony contained inconsistencies. They argue that the presumption under Section 139 is not automatically applicable where the prosecution fails to prove the execution, and that the cross‑examination yielded suggestions that undermined the appellant’s case. They rely on the Sessions Court’s re‑appreciation as a legitimate determination of the facts, and they urge restraint in interfering with an acquittal in a case under Section 138 NI Act, given the need for reliability of the cheque transaction.”},

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Bir Singh v. Mukesh Kumar	(2019) 4 SCC 197	Positive	Cited to support that a signed blank cheque can attract the presumption under Section 139 NI Act and that mere filling up by the payee does not invalidate the cheque.
Rohitbhai Jivanlal Patel v. State of Gujarat	(AIR 2019 SC 1876)	Positive	Cited for the principle that a judgment of acquittal may be interfered with when the evidence is misconstrued or where it is inappropriate to uphold the acquittal; used to justify interference in this case.
Kalamani Tex (M/s.) v. Balasubramanian	(2021) 5 SCC 283	Mentioned Only	Cited in the context of rebuttal of presumption but not as the controlling authority in the decision.
Sumeti Vij v. M/s Paramoung Tech Fab Industries	(AIR 2021 SC 1281)	Mentioned Only	Cited to illustrate that rebuttal of presumption is possible but not established in the facts of this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 CRL.A NO. 1218 OF 2016** **CRA 241/2011 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM ST 391/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, KOLLAM** ## **APPELLANT/S:** JAMEELA BEEVI AGED 74 YEARS, D/O SALIHA UMMA, ARATTIL HOUSE, CHATHINAKULAM, CHANDANATHOP P.O, KOLLAM. BY ADV SRI.C.RAJENDRAN ## **RESPONDENT/S:** 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 ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2023, THE COURT ON 05.06.2023 DELIVERED THE FOLLOWING:** Crl.Appeal No.1218 of 2016 -2- ## **JUDGMENT** Dated this the 05[th] day of June, 2023 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. 2. The trial court, on appreciation of Crl.Appeal No.1218 of 2016 -3- 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. 3. 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. 4. Learned Counsel for the appellant contended that the reasoning adopted by the court below is patently wrong. It is submitted that the appellant had proved the execution of Ext.P1 cheque in his favour and burden was on the first Crl.Appeal No.1218 of 2016 -4- respondent to rebut the presumption under Section 139. 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 -5- Crl.Appeal No.1218 of 2016 explanation offered during his questioning under Section 313 Cr.P.C were also not considered. 5. 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_ _**Sumeti Vij v. M/s.Paramoung Tech Fab Industries**_ _**[AIR 2021 SC 1281],**_ it was argued that, although the accused can rebut the presumption under Section 139, based on preponderance of probabilities, no such attempt was made by the first respondent. 6. Learned Counsel for the first respondent contended that, the lower court having re- Crl.Appeal No.1218 of 2016 -6- 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 Rs.1,50,000/-. 7. It is pertinent to note that, in her complaint, the appellant had clearly stated that Ext.P1 cheque was issued by the first respondent 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 Crl.Appeal No.1218 of 2016 -7- 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/-. 8. 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 Crl.Appeal No.1218 of 2016 -8- inconsistency or discrepancy was brought out by the first respondent and no attempt was even made to make out a probable defence. 9. While a judgment of acquittal should not 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**_ ## _**Jivanlal Patel v. State of Gujarat [AIR 2019 SC**_ _**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. Crl.Appeal No.1218 of 2016 -9- 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. **==> picture [35 x 12] intentionally omitted <==** ## **V.G.ARUN JUDGE** Scl/