M.P. Abdurahiman v. State of Kerala & Shukoor C.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 22ND DAY OF AUGUST 2019/31ST SRAVANA, 1941** ## **CRL.A.No.523 OF 2015** **AGAINST THE JUDGMENT IN CC 640/2012 DATED 23-03-2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY** **Crl.L.P.No.144/2015 DATED 21-05-2015 OF HIGH COURT OF KERALA** ## **APPELLANT:COMPLAINANT :-** **M.P.ABDURAHIMAN, AGED 50 YEARS, S/O.ABOOBACKER HAJI, MUNDAPPURATH HOUSE, POST UNNIKULAM, KOZHIKODE DISTRICT.** ## **BY ADV.SRI.K.A.SALIL NARAYANAN** **RESPONDENTS: STATE & ACCUSED :-** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SHUKOOR.C.P., SON OF C.P.MOHAMMED, THUMBONA HOUSE, POST THACHAMPOYIL, THAMARASSERY, KOZHIKODE DISTRICT 673001.** **R2 BY ADV.SRI.LUIZ GODWIN D'COUTH R1 BY PUBLIC PROSECUTOR-SRI.D.CHANDRASEKHAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2019,** **THE COURT ON 22-08-2019 DELIVERED THE FOLLOWING:** Crl.A.No.523 of 2015 :-2-: ## **J U D G M E N T** The appellant is the complainant in C.C.No.640/2012 of the Judicial First Class Magistrate-I, Thamarassery, Kozhikode District and the second respondent was the accused therein. By judgment dated 23.3.2015, the court below acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short'the Act'). This appeal is directed against judgment dated 23.3.2015 acquitting the accused under Section 138 of the Act. 2. It is the case of the appellant/complainant (hereinafter referred to as 'the complainant') that the second respondent/accused (hereinafter referred to as 'the accused') borrowed a sum of Rs.2,00,000/- from the complainant agreeing to repay the same within a period of one month as the amount was not repaid within time, the complainant demanded the repayment of the amount whereupon, the second respondent issued cheque dated 4.7.2012. The complainant presented the said cheque for encashment through the South Malabar Gramin Bank, Thamarassery Branch,which was dishonoured for the reason 'insufficient fund' in the account of the accused on 9.7.2012. Crl.A.No.523 of 2015 :-3-: The complainant issued a statutory notice on 31.7.2012 calling upon the accused to pay the amount. The accused received the notice on 7.8.2012. On receipt of the Advocate Notice, the accused sent Ext.D1 reply notice raising false contentions. 3. The complainant made a criminal complaint under Section 138 of the Act before the court below. Upon consideration of the complaint, the learned Magistrate was prima facie satisfied that a case was made out against the accused. Hence, the learned Magistrate took cognizance of the offence under Section 138 of the Act and numbered the case as C.C.NO.640/2012. 4. On service of summons, the accused appeared before the trial court. On the appearance of the accused, particulars of the offence were read over and explained to the accused to which he pleaded not guilty. Thereafter, the complainant was examined as PW1 and marked Exts.P1 to P5. After the complainant had been examined and before the accused was called on for his defence, the accused was questioned under Section 313(1)(b) of Cr.P.C. for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him. Crl.A.No.523 of 2015 :-4-: According to the accused, he paid the entire amount due to the complainant and pleaded discharge. DWs.1 and 2 were examined on the side of the accused and Ext.D1 was marked. 5. On appreciation of evidence, the learned Magistrate held that the complainant failed to prove the execution of Ext.P1 cheque for a legally enforceable debt, mainly relying on the oral evidence of DWs.1 and 2. 6. Heard Sri.Salil Narayanan.K., the learned counsel for the appellant and Sri.D.Chandrasenan, the learned Public Prosecutor appearing for the State. 7. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the Penal provision of Section 138 of the Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. Section 118 of the Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions Crl.A.No.523 of 2015 :-5-: to be raised until the contrary is proved, i) as to consideration, ii) as to date of instrument, iii) as to time of acceptance iv) as to time of transfer v) as to order of indorsements, vi) as to appropriate stamp and vii) as to holder being a holder in due course. That apart, Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that, as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under Crl.A.No.523 of 2015 :-6-: the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. 8. The accused did not dispute the signature in Ext.P1 cheque. When the issuance of cheque was admitted, it naturally follows that it was issued in discharge of a legally enforcible debt. The contention of the accused was that Ext.P1 was issued in respect of another transaction which was discharged by him and when the cheque was demanded back, it was stated that the same was lost from the accused. To substantiate this contention, DWs.1 and 2 were examined on the defence side. DW1 is a business man, who conducts a shop by name 'A.P. Sons' at Poonoor. He testified that for the last 7 to 8 years, he had been conducting chitty business as a helping hand to traders of the locality. The accused had joined in his chitty, which was prized by him at Rs.45,000/-. DW1 further testified that this amount was handed over to Crl.A.No.523 of 2015 :-7-: the complainant as instructed by the accused. DW2 is a pigmy collection agent of Syndicate Bank, Balussery. He stated that he collected daily deposit from the shop of the accused for the complainant. He clarified that the complainant joined in the daily deposit scheme pursuant to a card issued by the Bank in the name of the complainant. However, daily deposit due from the complainant was collected from the accused by him and on maturity, he paid the entire amount collected with interest to the complainant though the amount was actually paid by the accused. 9. DW1 had clearly stated that the amount paid by him to the complainant herein on behalf of the accused was in respect of an amount of Rs.45,000/-, which was due from the accused to the complainant. He further stated that he did not know any other transaction between the complainant and the accused. 10. The accused had a case that he had borrowed an amount of Rs.1,00,000/- from the complainant and in repayment of which an amount of Rs.75,000/- was returned through a fish vendor, who was never examined in the court. The accused further made an attempt to prove through DW2 that he had paid the amount due to the complainant by way Crl.A.No.523 of 2015 :-8-: of pigmi collection through the agent of Syndicate Bank, Balussery in the name of the complainant. The accused has not even stated the exact figure alleged to have paid through DW2. Even the figure repaid was not correctly stated. 11. In an appeal against the acquittal seeking to set aside the judgment of the trial court, the High Court does not interfere unless the impugned acquittal suffers from palpable infirmities or perversities. It is not for the appellate court to reanalyse and reinterpret the evidence on record in a case where the trial court has come to a probable conclusion. 12. On going through the impugned judgment, this Court is of the view that the lower court misconstrued Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. In **Bir Singh v. Mukesh** Crl.A.No.523 of 2015 :-9-: **Kumar** [(2019) 4 SCC 197] the Supreme Court held that in view of Section 139 of the Act read with Section 118 of the Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- “39. It is not the case of the respondentaccused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.” 13. In view of the above, the trial court patently erred in holding that the burden was on the complainant to prove that he had advanced the loan and the blank cheque was given to him in repayment of the same. The finding of the trial court that the case of the complainant is not proved beyond reasonable doubt is perverse for the discussions Crl.A.No.523 of 2015 :-10-: made herein above. 14. Judged by the above standards, this Court is of the view that the evidence tendered by the accused is not sufficient to rebut the presumption available in favour of the complainant under Section 139 of the N.I.Act. It is clear from the evidence let in by the complainant that Ext.P1 cheque was voluntarily signed and handed over by the accused to the complainant. In the result, the appeal is allowed. The judgment and order of acquittal dated 23.3.2015 of the trial court is set aside. The accused is convicted and sentenced to pay a fine of Rs.2,00,000/-. The fine amount shall be deposited in the trial court within eight weeks from this date, failing which the accused shall undergo rigorous imprisonment for a period of three months. The fine amount, if deposited, shall be paid to the complainant as compensation in accordance with law. sd/- **N.ANIL KUMAR** , Judge MBS/