Kerala High Court
Moosa Hajee vs Remla & Another on 31 July, 2025
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Crl. Appeal No. 1622/2008
2025:KER:56842
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
CRL.A NO. 1622 OF 2008
JUDGMENT DATED 07.05.2008 IN CC NO.70 OF 1997 OF JUDICIAL
MAGISTRATE OF FIRST CLASS,VATAKARA
APPELLANT/COMPLAINANT:
MOOSA HAJEE, S/O.MAMMU IYYANATHTHAHAKUNIYIL HOUSE, (P.O)
KEEZHAL, VADAKARA BY POWER OF ATTORNEY, HOLDER, BROTHER
R.T.K.KUNHABDULLA, (P.O) KEEZHAL,, (VIA), VADAKARA.
BY ADVS.
SRI.C.VALSALAN
SRI.K.RAKESH ROSHAN
SMT.THUSHARA.V
RESPONDENTS/ACCUSED & STATE:
1 REMLA, W/O. IBRAHIMKUTTY,
THEKKUM MURI, KIZHAKKUM MURIYIL HOUSE,, THAZHAVA
PANCHAYATH, IDAPPARAYIL, QUILON, DISTRICT.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH
COURT OF KERALA, ERNAKULAM.
BY ADVS.
SHRI.ANOOP V.NAIR
SRI.M.R.JAYAPRASAD
SRI.P.MOHANDAS (ERNAKULAM)
DR.K.P.SATHEESAN (SR.)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.07.2025,
THE COURT ON 31.07.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 1622/2008
2025:KER:56842
JOHNSON JOHN, J.
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Crl. Appeal No. 1622 of 2008
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Dated this the 31st day of July, 2025
JUDGMENT
The judgment of the trial court acquitting the accused under Section 138 of the Negotiable Instruments Act ('NI Act' for short) is challenged in this appeal by the complainant.
2. As per the complaint, Rs.50,000/- was due to the complainant and towards discharge of the said liability, the accused issued Exhibit P1 cheque dated 30.07.1996 and when the cheque was presented for collection, the same was dishonoured due to insufficiency of funds in the account of the accused. It is stated that in spite of issuance of statutory notice, the accused failed to pay the cheque amount to the complainant.
3. Before the trial court, from the side of the complainant, PWs 1 and 2 were examined and Exhibits P1 to P11 were marked. From the side of the accused, Exhibit D1 marked.
4. After considering the oral and documentary evidence on record and hearing both sides, the trial court acquitted the accused recording a 3 Crl. Appeal No. 1622/2008 2025:KER:56842 finding that the complainant has not succeeded in establishing the ingredients of the offence under Section 138 of the NI Act against the accused.
5. Heard both sides and perused the records.
6. The learned counsel for the appellant argued that the finding of the trial court that there is no proper service of statutory notice to the accused is not legally sustainable. The learned counsel for the respondent/accused argued that the complainant has not disclosed the date of execution and issuance of the cheque in the complaint or in the chief affidavit of PW1, power of attorney holder who filed the complaint. It is argued that in the absence of prima facie evidence regarding the execution and issuance of cheque and service of statutory notice in the correct address, there is no reason to interfere with the finding of the trial court that the complainant has not succeeded in proving the ingredients of the offence under Section 138 of the NI Act.
7. A perusal of the complaint and the chief affidavit of PW1 shows that the date of execution and issuance of Exhibit P1 cheque is not 4 Crl. Appeal No. 1622/2008 2025:KER:56842 disclosed. In cross examination, PW1 stated that the accused handed over the cheque to him while they were in the Police Station and at that time, the complainant was also present. According to PW1, the accused handed over the cheque on 30.07.1996.
8. However, PW1 has nothing to say when the counsel for the accused suggested that the complainant was abroad as on 30.07.1996. In another part of the cross examination, PW1 admitted that the transaction was between the complainant and the husband of the accused.
9. When the complainant is examined as PW2, he categorically admitted in cross examination that the accused has not handed over any cheque to him and that he was abroad at the time when the accused handed over the cheque to his elder brother. PW2 also admitted that he had no occasion to see the accused before.
10. The power of attorney dated 07.05.1997 executed by PW2 in favour of PW1 is marked as Exhibit D1. It is pertinent to note that PW2 has also not mentioned the date of execution and issuance of the cheque 5 Crl. Appeal No. 1622/2008 2025:KER:56842 in the chief affidavit. But, in cross examination, he stated that the accused issued the cheque on 15.03.1996.
11. The learned counsel for the appellant argued that the complainant is entitled for the presumption under Section 139 of the NI Act that the cheque was issued in discharge of a debt. In Kali Ram v. State of H.P. [1973 KHC 634], a three Judge Bench of the Honourable Supreme Court held thus:
"23. ...One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the 6 Crl. Appeal No. 1622/2008 2025:KER:56842 accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
12. The learned counsel for the accused/respondent argued that the specific case of the accused is that she never had any transaction with the complainant and that her blank signed cheque was stolen by the complainant from the possession of her husband while he was abroad and a perusal of the amended address of the accused in the complaint would show that the same does not tally with the address of the accused in Exhibit P5, postal cover, and Exhibit P3, statutory notice dated 15.11.1996. The endorsement in Exhibit P5, postal cover, would show that the same was returned unserved for the reason 'house name differs'.
13. It is not in dispute that when summons could not be served to the accused in the original address mentioned in the complaint, the complainant has taken steps for amending the address and subsequently, summons was served to the accused in the amended address. It is well settled that the presumption as to the service of notice by registered post under Section 27 of the General Clauses Act 7 Crl. Appeal No. 1622/2008 2025:KER:56842 will be attracted only when notice is issued by registered post in the correct address. In Sali Mohan v. Kolazhi Grama Panchayath, Thrissur and Others [2015 (4) KHC 261], this Court held thus :
"18. As I have already noticed, S.27 of the General Clauses Act, 1897 as well as S.26 of the Interpretation and General Clauses Act, 1125 do not lay down an inflexible or conclusive presumption as to service of notice by registered post. It only states that, a presumption as to service of document by post can be drawn if the circumstances enumerated in S.27 of the Central Act or S.26 of the State Act are present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that, the registered postal article should be 'properly addressed'. A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under S.27 of the Central Act or S.26 of the State Act, or under S.16 or S.114 of the Evidence Act."
14. A perusal of the address of the accused in the complaint, Exhibit P5 postal cover as well as Exhibit P10 returned summons and Exhibit P11 memo stating the correct address of the accused would clearly show that there was no proper service of statutory notice as 8 Crl. Appeal No. 1622/2008 2025:KER:56842 contemplated under Section 138(b) of the NI Act to the accused and therefore, there is no reason to interfere with the finding of the trial court in this regard.
15. 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. 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
16. 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. 9 Crl. Appeal No. 1622/2008
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17. The Honourable Supreme Court in Basalingappa v. Mudibasappa [(2019) 5 SCC 418] summarised the principles of law governing presumptions under Sections 118(a) and 139 of the NI Act in the following manner:
(i) Once the execution of cheque is admitted S.139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under S.139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
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18. As noticed earlier, the evidence of PWs 1 and 2 regarding the execution and issuance of cheque does not tally and the complainant has also failed to disclose the date of execution and issuance of cheque in the complaint and the statutory notice.
19. 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 that the accused is not required to prove his case beyond reasonable doubt.
20. On a careful re-appreciation of the entire evidence, I find that the complainant has not succeeded in proving the ingredients of the offence under Section 138 of the Act against the accused and therefore, this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN, JUDGE.
Rv