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High Court of KeralaSingle JudgeRevision petition dismissed; time granted to pa...

K.A. Nazeer v. State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 1105 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Sudheendra Kumar
Judgment Date
2018-10-16
Court Decision / Holding
Revision petition dismissed. However, the revision petitioner is granted eleven months to pay the compensation as requested by the learned counsel for the revision petitioner; if any amount has already been deposited before the trial court pursuant to the court’s direction, it will be adjusted as part payment of compensation.
Final Disposition
Revision petition dismissed; time granted to pay compensation (11 months).

Parties to the Case

Appellants / Petitioners

  • K.A. Nazeer

Respondents

  • State of Kerala
  • C.K. Saidumuhammed

Legal Representation & Advocates

Counsels for Petitioners

  • • N. L. Bitto

Counsels for Respondents

  • • E. C. Bineesh
  • • Siraj Karoly

Case Synopsis & Summary

This is a criminal revision petition filed by K.A. Nazeer under Section 397 read with other provisions against his conviction under Section 138 of the Negotiable Instruments Act, 1881. The Sessions Court at Irinjalakuda and the JMFC at Chalakudi had found the revision petitioner guilty of issuing a cheque in discharge of a debt and sentenced him accordingly. The complainant alleged that the petitioner borrowed Rs 7,00,000 and issued Ext. P1 cheque to settle the liability, with further contention of an additional Rs 25,000 loan. The defence challenged the proof of execution of Ext. P1 and the reliability of PW1’s testimony; there was no direct proof of signature or execution beyond PW1’s account. The judgment discusses the statutory notice and the fact that the revision petitioner did not reply, though a reply is not mandatory. The court relied on the presumption under Section 139 NI Act and, citing T.P. Murugan (dead) through LRs v. Bojan (2018) 8 SCC 469, held that mere doubt without cogent evidence cannot rebut this presumption. After evaluating the entire evidence, the Kerala High Court found no basis to interfere with the concurrent findings and dismissed the revision petition, while granting eleven months for payment of compensation to be treated as part payment.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

  • Presumption under Section 139 NI Act cannot be rebutted by mere doubt sans cogent evidence; cogent evidence is required to rebut the presumption.
  • Natural and acceptable evidence is to be preferred in evaluating PW testimony.
  • Non-response to a statutory notice is not mandatory, but a failure to respond can reflect on the claim; however, absence of a reply does not automatically negate the case.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that Ext. P1 has not been proven to be the cheque representing execution of the debt; there is no independent proof of signature or execution, and the alleged Rs 7,00,000 loan and the separate Rs 25,000 loan are not substantiated by material on record. He submits that without proof of execution, the conviction under Section 138 NI Act cannot stand, and the presumption under Section 139 NI Act is not rebutted by the evidence presented. He also notes that while replying to statutory notices is not mandatory, the lack of a reply cannot be used to infer liability absent cogent evidence. He relies on the Supreme Court’s decision in TP Murugan to argue that mere doubt cannot defeat the statutory presumption. The overall argument is that the lower courts erred in sustaining the conviction on insubstantial or unproven facts and that the revision should be allowed.

Contentions of Respondents

The respondents maintain that Ext. P1 cheque was issued in discharge of the debt evidenced by the loan of Rs 7,00,000 (and related Rs 25,000 claim). They argue that PW1’s testimony, though a single witness, is natural and credible, and the statutory notice was served; the failure to reply does not negate the claim but is not determinative. They emphasize the statutory presumption under Section 139 NI Act, which shifts the onus to the accused to rebut with cogent evidence; TP Murugan’s judgment is cited to underscore that doubt without cogent evidence cannot rebut the presumption. The respondents contend that concurrent findings by the trial and appellate courts are well-supported by the evidence and should be sustained.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
T.P. Murugan (dead) through Legal Representatives v. Bojan(2018) 8 SCC 469PositiveCited to support the proposition that mere doubt without cogent evidence cannot rebut the presumption under Section 139 NI Act.

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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 B.SUDHEENDRA KUMAR** **TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940** ## **Crl.Rev.Pet.No. 1105 of 2017** **AGAINST THE ORDER/JUDGMENT IN CRA 284/2013 of ADDITIONAL SESSIONS COURT, IRINJALAKUDA DATED 17-05-2017** **AGAINST THE ORDER/JUDGMENT IN ST 74/2012 of J.M.F.C. - II, CHALAKUDY DATED 22-11-2013** ## **REVISION PETITIONER/S:** **K.A.NAZEER, AGED 43, S/O.AMMUNNI, KARAPPAN KARAPPAN HOUSE, VELLIKULANGARA P.O., VELLIKULANGARA VILLAGE, MUKUNDAPURAM.** **BY ADV. SRI.N.L.BITTO** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682031.** **2 C.K.SAIDUMUHAMMED, AGED 70, S/O.LATE KUNJUMARAKKAR, CHEENIKKAPURATH HOUSE, VELLIKULANGARA P.O., VELLIKULANGARA VILLAGE, CHALAKUDY TALUK-680307. R2 BY ADV. SRI.SIRAJ KAROLY** **R1 BY SRI. E C BINEESH-PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **Crl.Rev.Pet.No. 1105 of 2017** -2- ## **ORDER** The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act, 1881, (for short “the NI Act”). 2. Heard. 3. The learned counsel for the revision petitioner has submitted that the complainant could not prove the execution of Ext.P1 cheque as contemplated under Section 138 of the N.I.Act and in the said circumstances, the conviction and sentence cannot be sustained. ## **Crl.Rev.Pet.No. 1105 of 2017** -3- 4. The contention of the complainant is that the revision petitioner borrowed an amount of Rs.7,00,000/- from the complainant and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the complainant. The revision petitioner is the son of the brother of the wife of the complainant. In order to prove the case of the complainant, the complainant himself got examined as PW1. It is an admitted fact that the complainant was employed abroad. I have gone through the evidence of PW1. Even though the learned counsel for the revision petitioner has advanced many arguments in an attempt to ## **Crl.Rev.Pet.No. 1105 of 2017** -4- show that the evidence of PW1 is not reliable, the learned counsel could not point out even a single instance to indicate that the evidence of PW1 suffers from any inherent infirmity or improbability to render his evidence incredible. Not even a suggestive question was put to PW1 with regard to the capacity of PW1 to advance the amount covered by the cheque. 5. The contention of the revision petitioner is that the revision petitioner borrowed an amount of Rs.25,000/- from the complainant and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the ## **Crl.Rev.Pet.No. 1105 of 2017** complainant. However, apart from the said contention, there is absolutely no material before the court to indicate that the said contention of the revision petitioner is probable. 6. The Apex Court in T.P.Murugan(dead) through Legal Representatives v. Bojan [(2018)8 SCC 469], held that mere raising of a doubt sans cogent evidence, cannot rebut the presumption under Section 139 of the N.I.Act. 7. In this case, I have gone through the evidence of PW1 and I am satisfied that the evidence of PW1 is natural and hence acceptable. No material is available before ## **Crl.Rev.Pet.No. 1105 of 2017** -6- the Court to indicate that the contention of the revision petitioner is probable. The revision petitioner did not even send any reply to the statutory notice. It is true that sending of reply to the statutory notice is not mandatory. However, if the revision petitioner had any contention different from what was stated in the statutory notice, he would have naturally sent reply stating the true facts. 8. Having gone through the entire evidence of PW1, I am satisfied that the courts below correctly appreciated the oral and documentary evidence and concurrently found that the revision petitioner executed ## **Crl.Rev.Pet.No. 1105 of 2017** Ext. P1 cheque as contemplated under Section 138 of the N.I.Act. No material has been brought to the notice of this Court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Section 138 of the N.I.Act does not warrant any interference by this Court. The sentence awarded by the appellate court also does not warrant any interference by this Court. In the result, this Revision Petition ## **Crl.Rev.Pet.No. 1105 of 2017** stands dismissed. However, the revision petitioner is granted eleven months to pay the compensation as requested by the learned counsel for the revision petitioner. Needless to state that, if the revision petitioner had already deposited any amount before the trial court pursuant to the direction of this Court, the said amount will be treated as part payment of the compensation. **==> picture [398 x 15] intentionally omitted <==** directly made to the complainant will be treated as sufficient compliance of payment of compensation, provided the complainant ## **Crl.Rev.Pet.No. 1105 of 2017** -9files an affidavit in this regard before the trial court. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//