Kerala High Court
Pulliyanchali Muhammed vs K.Muhammadali Karangadan on 30 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943
CRL.A.No.1368 OF 2006
AGAINST THE ORDER/JUDGMENT IN ST 72/2004 OF CHIEF JUDICIAL
MAGISTRATE, MANJERI
APPELLANT/COMPLAINANT:
PULLIYANCHALI MUHAMMED
S/O.KOYA, KEZHUPARAMBA AMSOM,
KUNIYIL, VALILLAPUZHA.
BY ADV. SRI.K.M.SATHYANATHA MENON
RESPONDENTS/ACCUSED/STATE:
1 K.MUHAMMADALI KARANGADAN
S/O.MOYIN HAJI,
KARIMBINGAL HOUSE,
MARAYOOR.
2 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. P.VENUGOPAL
R2 BY PUBLIC PROSECUTOR SMT.S.L.SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1368 OF 2006
2
JUDGMENT
Dated this the 30th day of March 2021
The complainant in S.T.No.72/2004 on the file of
the Chief Judicial Magistrate, Manjeri has filed
this appeal being aggrieved by the judgment dated
14.02.2006, whereby the accused/1st respondent was
acquitted in a complaint under Section 138 of the
Negotiable Instruments Act.
2. Heard Sri.K.M.Sathyanatha Menon, learned
counsel on behalf of the appellant and
Sri.P.Venugopal, learned counsel on behalf of the 1st
respondent.
3. According to the appellant, the 1st
respondent had borrowed ₹50,000/- in October 2003
and for securing repayment of the amount, a cheque
had been issued, which when sent for collection
returned dishonoured for the reason 'fund
insufficient'. When no payment was made even after
the appellant had issued the statutory notice, the
CRL.A.No.1368 OF 2006
complaint is said to have been filed. The accused
contended that during 1994, he was having a bus
service and he used to purchase tyre from the shop
of one Major Nikkolas and to secure the payment of
the price of tyres, he had given blank cheque, which
has been misused. Learned counsel for the appellant
submits that since the signature in the cheque is
admitted, he is entitled to the benefit of
presumption under Section 139 of the Negotiable
Instruments Act and the burden is on the 1 st
respondent to rebut the said presumption. Learned
counsel further submits that the 1st respondent has
failed to rebut the said presumption and hence he is
liable to be found guilty.
4. The learned counsel for the 1st respondent
submits that he has had no financial transaction
with the complainant at any point of time and that
there is no legally enforceable debt for which he is
liable to the complainant. He points out that in
cross examination, the complainant has admitted that
CRL.A.No.1368 OF 2006
he is working in a tyre shop named PMH Automobiles.
He has further stated during the cross examination
that the accused owes money towards the price of
tyre for which there is a civil case pending and
that the amount involved in the civil case has also
not been received. It is specifically stated that
the accused had written his name and the amount in
the cheque in his presence using the pen, which he
had with him. Regarding the above statement made by
the appellant, the counsel for the respondent points
out that it can be seen from Ext.P1 cheque that the
name of the payee and the amount in words as well as
in figures as well as the date on the cheque are
type written and not written by hand. The
complainant has also stated during cross examination
that he is receiving a salary of only ₹3,000/-.
5. I find considerable force in the contention
raised by the learned counsel for the 1 st respondent.
The court below has considered these aspects and
found that the case put forward by the accused is
CRL.A.No.1368 OF 2006
more believable and that it cannot be believed that
the complainant had lent a sum of ₹50,000/- to a
person whom he has seen only from the tyre shop,
when the accused came to purchase tyres. It has
come out during cross examination that the
complainant does not know any details about the
accused and his specific case that the accused had
issued a cheque filled by him personally in hand, in
the presence of the complainant is disproved by
Ext.P1 cheque itself. The court below also noticed
the fact that the accused was the President of
Mongam Grama Panchayat.
6. In such circumstances, it cannot be said
that the accused has not tendered sufficient
evidence to rebut the presumption under Section 139
of the Negotiable Instruments Act. The complainant
has failed to prove even the execution of the cheque
since his very specific case that it was a cheque
written using a pen in his presence is disproved by
Ext.P1 cheque itself.
CRL.A.No.1368 OF 2006
I do not find any reason to interfere with the
judgment dated 14.02.2006 in S.T.No.72/2004 of the
Chief Judicial Magistrate Court, Manjeri. Appeal
fails and is dismissed. In the circumstances of the
case, there will be no order as to costs.
Sd/-
T.R.RAVI, JUDGE
Pn
