M/S.Noby Builders And Developers vs State Of Kerala
2024 Latest Caselaw 27178 Ker

Kerala High Court

M/S.Noby Builders And Developers vs State Of Kerala on 11 September, 2024

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

Crl.M.C No.4127/24                   1

                                                        2024:KER:70407
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

              THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946

                         CRL.MC NO. 4127 OF 2024

          AGAINST THE ORDER DATED 07.05.2024 IN CMP NO.975/2024 IN ST

NO.492 OF 2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ERATTUPETTA

PETITIONERS/ACCUSED 1 AND 2:

      1       M/S.NOBY BUILDERS AND DEVELOPERS
              REPRESENTED BY ITS PROPRIETOR,
              NOBY KRISHNAN,
              SON OF KRISHNAN,
              NOBY BUILDINGS, PALA ROAD P.O,
              THODUPUZHA, PIN - 685584

      2       THE PROPRIETOR
              M/S. NOBY BUILDERS AND DEVELOPERS,
              NOBY KRISHNAN,
              AGED 47, S/O. KRISHNAN,
              KUTTAMMACKAL HOUSE,
              KOLANI P.O., THODUPUZHA PIN - 685608


              BY ADVS.
              SRI.NITHIN SUDHAKAR
              SRI.SAIJO HASSAN
              SRI.DHEERAJ BABY
              SMT.DEVI.R.SENS
              SMT.MEERA J. MENON




RESPONDENTS/STATE/COMPLAINANT:

      1       STATE OF KERALA
              REPRESENTED BY PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA
              ERNAKULAM, PIN - 682031

      2       M/S. CHOICE SANIWARES AND ELECTRICALS
              REPRESENTED BY ITS PROPRIETOR,
 Crl.M.C No.4127/24                2

                                                          2024:KER:70407
              SABU M.S.,
              S/O. SAHADEVAN,
              THALAPPULAM, ERATUPETTA P.O, PIN - 686121



              SRI. NOUSHAD K.A., PUBLIC PROSECUTOR


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
04.09.2024, THE COURT ON 11.09.2024 PASSED THE FOLLOWING:
 Crl.M.C No.4127/24                    3

                                                                 2024:KER:70407

                       BECHU KURIAN THOMAS, J.
                       --------------------------------
                         Crl.M.C No.4127 of 2024
                      ---------------------------------
                 Dated this the 11th day of September, 2024

                                     ORDER

Petitioners are facing prosecution under section 138 of the

Negotiable Instruments Act, 1881 (for short 'NI Act') in S.T.

No.492/2020 on the files of the Judicial First Class Magistrate's Court,

Erattupetta. When the case was posted for trial, an application was filed

by the accused requesting to send the cheque involved in the case, for

scientific examination, stating that the handwriting on the cheque did not

belong to the accused. By the impugned order dated 07.05.2024, the

learned Magistrate dismissed the said application and hence this petition

under Section 482 of the Code of Criminal Procedure, 1973.

2. The prosecution was initiated on an allegation that a cheque,

issued by the accused for Rs.1,42,000/- dated 01.10.2019, in repayment

of a credit purchase of electrical goods and sanitary wares, was

dishonoured on presentation. Though the accused had admitted the

signature on the cheque, he denied the writings on it, while the

complainant asserted that the cheque was written by the accused

himself.

3. Sri. Saijo Hassan and Sri. Nithin Sudhakar, the learned

2024:KER:70407 counsel for the petitioners vehemently contended that the nature of the

defence set up by the petitioners required the writings on the cheque to

be sent for forensic examination. According to the learned counsel,

petitioners had issued only a blank cheque as a security for another

financial transaction and therefore the contention of the complainant that

the cheque was written by the accused could be disproved only by a

forensic examination. The learned counsel also submitted that in order

to avail of a proper opportunity for adducing all the evidence for the

defence, the disputed cheque ought to be sent for forensic examination.

It was also argued that the falsity of the complainant's case regarding

the writings on the cheque would be one of the factors which can enable

the accused to disprove the presumption available to the complainant.

The learned counsel relied upon the judgment of the Supreme Court in

Sri. Dattatraya v. Sharanappa (2024 INSC 586) and canvassed for

the proposition that the non-existence of a debt or liability could be

proved by circumstantial evidence and by preponderance of probabilities

and in that attempt the falsity of the complainant's allegations can be of

help.

4. Sri. Noushad K.A., the learned Public Prosecutor on the

other hand contended that the attempt of the accused is only to protract

the trial and also that the learned Magistrate had considered all the

aspects of the case.

2024:KER:70407

5. I have considered the contentions advanced.

6. The question relating to sending a cheque for forensic

examination when the signature on a cheque is admitted while the

writings are denied, has been the subject of consideration by the Courts

many a time. In the decision in Sri. Dattatraya v. Sharanappa (2024

INSC 586) the Supreme Court had observed that since the presumption

enables the holder of a cheque to show a prima facie case, it can only

survive before a court of law subject to contrary not having been proved

to the effect that a cheque or negotiable instrument was not issued for

consideration or for discharge of any existing or future debt or liability.

In Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, it was observed that

if a signature on a blank cheque stands admitted to having been

inscribed voluntarily, it is sufficient to trigger a presumption under

section 139 of the NI Act, even if there is no admission to the effect of

execution of entire contents in the cheque.

7. However, in Oriental Bank of Commerce v. Prabodh

Kumar Tewari (2022 INSC 832) it has been observed by referring to

the decision in Kalamani Tex and Another v. P. Balasubramanian

[(2021) 5 SCC 283] as follows:

" 15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under S.139.

2024:KER:70407

16. In Anss Rajashekar v. Augustus Jeba Ananth (2020) 15 SCC 348, a two Judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three - Judge Bench of this Court in Rangappa v. Sri Mohan (2010) 11 SCC 441 on the presumption under S.139 of the NI Act. The Court held:

12. S.139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression "unless the contrary is proved"

indicates that the presumption under S.139 of the Act is rebuttable. Terming this as an example of a "reverse onus clause" the three - Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under S.139 of the Act is guided by a preponderance of probabilities. This Court held thus:

"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own." (emphasis supplied)

17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand - writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a

2024:KER:70407 debt or in discharge of a liability."

8. In view of the above binding precedents, it is obvious that

even if the details in the cheque under consideration in the instant case

were filled up by someone else other than the drawer, it is immaterial.

Further, the deposition of the witness in the instant case that the cheque

was filled up by the accused, even if proved wrong, as contended by

Adv. Nithin, cannot advance the case of the accused since the principle

of 'falsus in uno, falsus in omnibus' has no application to India.

9. Hence, there is no merit in the challenge against the

impugned order order dated 07.05.2024 in CMP No.975/2024 in S.T.

No.492/2020 on the files of the Judicial First Class Magistrate's Court,

Erattupetta.

This petition is therefore dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE vps

2024:KER:70407

PETITIONER'S/S' ANNEXURES

Annexure 1 CERTIFIED COPY OF THE ORDER OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, ERATTUPETTA IN CMP NO.975/2024 ARISING OUT OF ST 492/2020 ON THE FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS, ERATTUPETTA