P. Muhammed Ashraff v. P. Abdul Majeed & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 27TH DAY OF APRIL 2021 / 7TH VAISAKHA, 1943** **CRL.A.No.401 OF 2011(A)** **AGAINST THE JUDGMENT IN ST 996/2009 DATED 15-12-2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA** ## **APPELLANT/PETITIONER/COMPLAINANT:** **P.MUHAMMED ASHRAFF S/O.PATTANI MUHAMMED HAJI, PATTANI HOUSE, UCHARAKKADAVU, CHEMMADIYODU, MALAPPURAM DISTRICT - 679 325.** **BY ADVS. SRI.SAIBY JOSE KIDANGOOR SRI.BENNY ANTONY PAREL SRI.JOSWIN THAMBI KUNNATH SMT.T.H.RAJITHA** ## **RESPONDENT/ACCUSED & STATE:** - **1 P.ABDUL MAJEED S/O.ALI,PARALIL HOUSE, KARKKIDAMKUNNU, ALANALLUR.** **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, ERNAKULAM.** **R1 BY ADV. SMT.M.A.SHEEBA** **R2 BY SR PUBLIC PROSECUTOR K.B. UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3103-2021, THE COURT ON 27-04-2021 DELIVERED THE FOLLOWING:** Crl.Appeal No.401/11 -:2:- ## **J U D G M E N T** Dated this the 27[th ] day of April, 2021 This is an appeal filed against the acquittal u/s 378(4) of the Criminal Procedure Code (Cr.P.C) in a proceeding initiated u/s 138 of the Negotiable Instruments Act (for short N.I Act) in S.T No.996/2009 on the file of the Judicial First Class Magistrate Court-II- Perinthalmanna. 2. The parties are referred to in this judgment as they were referred to in the impugned judgment, that is the complainant and the accused. 3. The complaint was filed for prosecuting the accused for an offence under Section 138 of the N.I Act. It was alleged that the accused received a total sum of `2,08,000/- from the complainant agreeing to supply wood, but, the accused could not supply the wood as agreed and towards the amount collected issued Ext.P1 cheque, that the cheque on presentation was dishonored for want of sufficient funds, that Ext.P5 notice demanding payment was not heeded to and therefore the accused committed an offence punishable under Section 138 of Crl.Appeal No.401/11 -:3:- the N.I Act. 4. PW1 was examined on behalf of the complainant and Exts.P1 to Ext.P7 were marked. DW1 was examined on the side of the defence and Exts.D1 and D2 series were marked. 5. The court below on appreciation of the evidence found that the complainant failed to prove the execution and delivery of Ext.P1 cheque and that the case put forward by the accused is more probable and believable and, hence, no offence under Section 138 of the N.I Act was made out. Accordingly, the accused was acquitted under Section 255 (1) of Cr.P.C, as per the impugned judgment. Challenging the said judgment, the complainant preferred this appeal. 6. Even though notice has been served to the 1[st] respondent, there is no appearance. Heard the learned counsel for the appellant. 7. The learned counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext.P1 cheque by examining PW1 and, hence, presumption under Section 139 of the N.I Act would come into play and the accused has failed to rebut the said presumption. The counsel further Crl.Appeal No.401/11 -:4:- argued that the defence raised by the accused does not inspire confidence or meet standards of preponderance of probability. The court below went wrong and committed illegality in acquitting the accused, argued the counsel. 8. The Negotiable Instruments Act raises two presumptions, firstly in regard to the passing of consideration as contained in Section 118 therein and secondly, the presumption that the holder of the cheque receiving the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. Of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. 9. It is not in dispute that both the complainant and accused were engaged in wood trade and that they used to engage in the Crl.Appeal No.401/11 -:5:- wood business each other. The case set up by the complainant is that, on 2/2/2007, the accused came to his house and received `1,78,000/- from him on the assurance that he would supply trees for the said amount. Thereafter, on 18/4/2008, a further sum of `30,000/- was received on giving the same assurance. According to the complainant, the accused agreed to give trees within four months of 18/4/2008. But, the accused failed to give the trees and asked the complainant to present Ext.P1 cheque which was handed over by him to the complainant. Accordingly, the cheque was presented and it was dishonoured. PW1 gave evidence in tune with the averments in the complaint. The complainant pressed into service the oral testimony of PW1 to prove the transaction and execution of the cheque. The complainant also relies on Ext.P2 consent letter allegedly issued by the accused to prove the transaction and issuance of the cheque. The definite defence case set up by the accused from the very inception is that the cheque in question was issued as a security to one Mr.Ummer who was examined as DW1 in connection with a partnership business between him and Ummer and there is absolutely no transaction as alleged between him and the Crl.Appeal No.401/11 -:6:- complainant. The accused took a definite stand that the cheque in question was not issued by him to the complainant. He denied the case of the complainant that he received `2,08,000/- from the complainant agreeing to supply wood. 10. A perusal of the complaint and the chief affidavit of PW1 would show that the complaint as well as the chief affidavit are silent as to when exactly Ext.P1 cheque was issued. The circumstance under which Ext.P1 happened to be issued is also not stated in the complaint or chief affidavit. The case set up by the complainant is that when the complainant demanded to supply trees as agreed, the accused expressed his inability to supply trees and asked the complainant to present Ext.P1 cheque and to encash it. There is no whisper either in the complaint or in the chief affidavit when Ext.P1 cheque was given. What is discernible from the complaint and the chief affidavit is that the accused asked the complainant to present the cheque which was already handed over to him. Ext.P2 is a consent letter allegedly prepared on a plain paper by the accused and issued to the complainant. It contains a recital that the accused received `2,08,000/- from the complainant and that the wood would be Crl.Appeal No.401/11 -:7:- supplied within four months from 18/4/2008 failing which the complainant is free to initiate action on the strength of the cheque. Ext.P2 is also silent as to when exactly the cheque was given. That apart, the accused has specifically denied Ext.P2 and it has not been proved in accordance with law. In Ext.P5 notice, there is no mention about Ext.P2. 11. As stated already, right from the inception, the defence has a definite case that the cheque in question was issued to DW1 as a security in connection with a business transaction between them. The accused specifically denied alleged transaction between the complainant and him and the execution and issuance of the cheque projected by the complainant. The accused has taken his defence in Ext.P7 reply notice itself. To substantiate the said defence case, the accused has examined DW1 and produced Exts.D1 and D2 series. The oral evidence of PW1 as well as Ext.P2 have to be evaluated in the light of the above defence case set up by the accused and the evidence given by the defence to substantiate its defence case. 12. Ext.D1 is the agreement executed between DW1 and Crl.Appeal No.401/11 -:8:- the accused. Ext.D1 has been marked through DW1. It is dated 6/5/2008. Ext.P3 is dated 9/12/2008. A reading of Ext.P1 would show that there was a partnership business between the accused and DW1 and later they decided to dissolve the partnership business and DW1 received `4 lakhs invested by him from the accused on 6/5/2008. The accused agreed to give the share of profit due to DW1 on or before 12/5/2008 and towards the security of the said amount, two blank cheques were issued by him to DW1. The numbers of two blank cheques were specifically stated in the agreement. One among them bears the number of Ext.P1 cheque. There is also a condition in Ext.D1 that DW1 shall return the two cheques as and when the liabilities are settled. Ext.D2 is a lawyer notice dated 17/5/2008 issued by the accused to DW1 demanding return of those two blank cheques. Ext.D2(b) is the acknowledgment card dated 19/5/2008. It would show that DW1 received Ext.D2 on 19/5/2008. DW1 has admitted the receipt of Ext.D2 notice by him on 19/5/2008. The learned counsel for the appellant vehemently argued that the defence story set up by the accused is nothing but is a collusive affair between him and DW1. But, Exts.D2 and D2(b) would clearly Crl.Appeal No.401/11 -:9:- show that prior to issuance of Ext.P1 cheque, the accused had issued a notice to DW1 and demanded the return of that cheque. There was absolutely no possibility for such a collusion even before the issuance of Ext.P1 cheque. That apart, the defence story set up by the accused stands proved from the recital in Ext.D1 agreement. Ext.D1 agreement has been satisfactorily proved through DW1. DW1 was summoned by the accused on defence side. The perusal of evidence of DW1 would show that initially he was not at all supporting the defence version. But, permission was sought to cross-examine him by the defence and when Ext.D1 was confronted, he had to admit the business transaction between him and the accused, issuance of two blank cheques, receipt of Ext.D2 notice etc. If there was any collusion between DW1 and the accused, he would have straightaway given evidence in support of the defence case. The evidence of DW1 inspires the confidence of the Court. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case was successful in Crl.Appeal No.401/11 -:10:- discharging the burden by cross-examining PW1 and by examining DW1 and by proving probabilities in his favour and non probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Therefore, the presumption under Sections 118(a) and 139 of the NI Act is over. Even the conduct of the complainant and backdrop of the facts are against him. Thus, it can safely be concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable. In these circumstances, the evidentiary burden shifts back to the complainant and therefore, the presumption u/s 118 (a) and 139 of the NI Act will not be available to the complainant again. The complainant failed to discharge the said burden. 13. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to Crl.Appeal No.401/11 -:11:- be perverse, the Appellate Court can interfere with the order of acquittal. The Supreme Court in _**M.S.Narayana Menon and K.Prakasan v. P.K.Surendran**_ [(2008) 1 SCC 258] has held that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. For the reasons stated above, I find no reason to interfere with the order of acquittal by the court below vide the impugned judgment. The appeal fails and it is only to be dismissed. In the result, the appeal is dismissed. **Sd/-** **DR. KAUSER EDAPPAGATH** Rp True Copy PS to Judge **JUDGE**