Kerala High Court
Abdulrahiman Haji vs K.Sulaiman And Another on 24 May, 2024
Crl. Appeal No. 307/2007 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
CRL.A NO. 307 OF 2007
JUDGMENT DATED 25.11.2006 IN CC NO.224 OF 2005 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II, KASARAGOD
APPELLANT/COMPLAINANT:
ABDULRAHIMAN HAJI
S/O.KUNJIMAYINKUTTY HAJI,, MALIKAL VALAPPIL HOUSE,, P.O.ADHOOR,
KASARAGOD TALUK.
BY ADV SRI.M.RAMESH CHANDER
RESPONDENTS/ACCUSED AND STATE:
1 K.SULAIMAN, S/O. MOIDEENKUNJI,
KOLPE HOUSE, P.O.KONALU, VIA UPPINANGADI, KARNATAKA STATE.
2 STATE OF KERALA REP. BY ITS
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
SRI. VIPIN NARAYAN - SR. PUBLIC PROSECUTOR
SRI. AMAL AMIR ALI - AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE
COURT ON 24.05.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 307/2007 :2:
JOHNSON JOHN, J.
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Crl. Appeal No. 307 of 2007
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Dated this the 24th day of May, 2024.
JUDGMENT
This appeal is filed against the judgment dated 25.11.2006 of the
Judicial First Class Magistrate-II Kasaragod in C.C. No. 224 of 2005,
whereby the accused was found not guilty of the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 (for short
'NI Act') and acquitted under Section 255(1) Cr.P.C
2. The appellant is the complainant and complaint was filed on the
allegation that the accused has obtained an amount of Rs.2,60,000/-
from the complainant as loan and subsequently, after repeated
demands, the accused issued cheque dated 07.10.2002 for Rs.
2,60,000/- to the complainant and when the complainant presented the
cheque for collection, the same was dishonoured due to insufficiency of
funds in the account of the accused and in spite of issuance of statutory
notice, the accused failed to pay the cheque amount.
3. In the trial court, the complainant was examined as PW1 and
Exhibits P1 to P5 were marked. From the side of the accused, DW1
examined and Exhibits D1 to D3 were marked. After considering the
evidence on record and hearing both sides, the trial court found that the
accused has succeeded in rebutting the statutory presumptions in favour of
the complainant and that the complainant has not succeeded in proving that
the cheque was issued by the accused in discharge of any debt or liability
and therefore, the accused was found not guilty of the offence under
Section 138 of the NI Act.
4. Heard Sri. Balu Tom, the learned counsel representing Sri. N.
Ramesh Chander, the learned counsel for the appellant, Sri. Amal Amir Ali,
learned Amicus curiae for the first respondent and Sri. Vipin Narayan, the
learned Senior Public Prosecutor for the second respondent, State of
Kerala.
5. The learned counsel for the appellant argued that the trial court
has not appreciated the impact of Exhibits D1 and D2 agreements in the
correct perspective and that the trial court ought to have found that the
said agreements have no connection with the transaction alleged in this
case. It is argued that the finding of the trial court that the accused has
succeeded in rebutting the statutory presumptions in favour the
complainant, is not legally sustainable.
6. When the accused/first respondent failed to appear in spite of
service of notice, this court appointed Adv. Amal Amir Ali as Amicus
curiae and the learned Amicus curiae argued that the evidence of PW1 in
cross examination and Exhibits D1 to D3 would clearly show that the
evidence of PW1 that he advanced a loan of Rs.2,60,000/- to the
accused 3 months prior to 07.10.2002, the date shown in Exhibit P1
cheque, is not at all reliable and there is no valid grounds to interfere
with the findings in the impugned judgment.
7. It is pertinent to note that the complainant has not disclosed
the date on which he advanced the amount to the accused in the
complaint or the chief affidavit. In cross examination, PW1 stated that
he is conducting timber business and that he advanced the amount to
the accused 3 months prior to the receipt of Exhibit P1 cheque dated
07.10.2002. In the beginning of the cross examination, PW1
categorically stated that he has not conducted any timber business with
the accused and that he never had any transaction with the son of the
accused. But, when the learned counsel for the accused confronted PW1
with Exhibits D1 and D2, he admitted his signature in the said
documents and the fact that Exhibit D1 is an agreement executed
between PW1 and the son of the accused. PW1 further admitted that
Exhibit D2 is an agreement executed between the accused and the
complainant in connection with a timber transaction.
8. The specific case of the accused is that the signed blank cheque
entrusted to the complainant in connection with Exhibit D2 agreement is
misused for filing this case. It is worthwhile to note that the amount due
from K.S Jabbar, the son of the accused, to the complainant and his
partner Mahim Badsha Haji as per Exhibit D1 agreement is Rs.
2,60,000/- and the said agreement is dated 25.03.2002. Therefore, it
can be seen that the amount shown in Exhibit P1 cheque and Exhibit D1
agreement are the same. Mahim Badsha, the first party in Exhibit D1
agreement, is examined as DW1 and his evidence shows that the
complainant was his partner in the timber business. DW1 also admitted
his signature in Exhibit D2 agreement for purchasing timber from the
accused. According to DW1, at the time of executing Exhibit D2
agreement, they paid Rs.2,00,000/- to the accused and the accused has
not so far supplied the timber or returned the money. According to DW1,
he along with the complainant paid Rs.2,60,000/- to the son of the
accused as loan and that Exhibit D1 is an agreement executed in that
connection.
9. The evidence of PW1 in cross examination clearly shows that
PW1 has attempted to suppress the transactions as per Exhibits D1 and
D2 and he admitted the said transactions only when he was confronted
with Exhibits D1 and D2. In cross examination, PW1 denied issuance of a
lawyers notice to the son of the accused on the basis of Exhibit D1
agreement, on 15.10.2002, through Adv. B. Karunakaran, when he was
examined before the trial court on 23.06.2005 and subsequently when
PW1 was recalled and examined on 22.07.2005, he admitted the
issuance of Exhibit D3 notice dated 15.10.2002, through Adv. B.
Karunakaran to K. S. Jabbar, the son of the accused in connection with
Exhibit D1 agreement. The complainant, when examined as PW1, failed
to give any satisfactory explanation for advancing a loan of
Rs.2,60,000/- to the accused when amount is due as per Exhibit D2
agreement from the accused to the complainant. It is also pertinent to
note that the amount due from the son of the accused to the
complainant and his partner as per Exhibit D1 agreement dated
25.03.2002 and the amount shown in Exhibit P1 cheque are the same
and in that circumstance, I find no reason to disagree with the finding of
the trial court that the evidence of PW1 that he advanced a loan of
Rs.2,60,000/- to the accused 3 months prior to 07.10.2002, is not at all
reliable and that the case put forward by the accused is more probable.
10. The learned Amicus curie cited the decision of the Honourable
Supreme Court in Rajesh v. Ajay Sing [AIR 2023 SC 5018] to show
that the standard of proof to discharge the evidential burden on the
accused is not as heavy as that usually seen in situations where the
prosecution is required to prove the guilt of the accused and that the
accused is not expected to prove the non-existence of the presumed fact
beyond reasonable doubt and that the accused must meet the standard
of preponderance of probabilities similar to a defendant in a civil
proceeding.
11. 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.
12. 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
13. 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.
14. 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. The standard of proof, in order to rebut the statutory
presumption, can be inferred from the materials on record and
circumstantial evidence.
15. Therefore, in the absence of any satisfactory evidence to show
that Exhibit P1 cheque was issued for discharging a legally enforceable
debt from the side of the accused to the complainant, I find no reason to
interfere with the finding of the trial court that the accused has
succeeded in rebutting the statutory presumptions in favour of the
complainant and in that circumstance, I find that this appeal, which is
devoid of merit, is liable to be dismissed.
In the result, this appeal is dismissed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
