Kerala High Court

M/S.Mahindra And Mahindra Financial ... vs Amjas.M.P. @ Mohamed Amjas on 8 August, 2025

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Crl. Appeal No.2353/2007



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN

           FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947

                           CRL.A NO. 2353 OF 2007

       AGAINST THE JUDGMENT DATED 04.08.2007 in CC NO. 349 OF 2005 OF
JUDICIAL FIRST CLASS MAGISTRATE-II (ADDITIONAL MUNSIFF), KASARAGOD

APPELLANT/COMPLAINANT:

             M/S.MAHINDRA AND MAHINDRA FINANCIAL
             SERVICES LIMITED, HAVING ITS CORPORATE OFFICE AT, SADHANA
             HOUSE, 2ND FLOOR, 570 PB MARG,BEHIND MAHINDRA,
             TOWERS,WORLI, MUMBAI- 400 018, DULY REPRESENTED BY THE
             POWER OF ATTORNEY HOLDER, SRI.TONY GEORGE, AGED 29 YEARS,
             BRANCH IN-CHARGE, M/S. MAHINDRA AND MAHINDRA FINANCIAL
             SERVICES LIMITED, KASARAGOD BRANCH.


             BY ADV SRI.DEVAPRASANTH.P.J.


RESPONDENT/ACCUSED:

      1      AMJAS.M.P. @ MOHAMED AMJAS
             AGED 27 YEARS, S/O. ABDUL RAHIMAN, 5/106,, F (13/124), KUKKATH,
             PULIYAKKOTTU HOUSE,, KARASSERY, KOZHIKODE.

      2      STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA.


             BY ADVS.
             SRI.K.M.MUHAMMED HUSSAIN
             SMT.P.K.PRIYA
             R1 BY SRI.K.V.SREE VINAYAKAN
             SRI.T.K.VIPINDAS
             SMT. HASNAMOL N.S., PUBLIC PROSECUTOR



       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2025, THE

      COURT ON 08.08.2025 DELIVERED THE FOLLOWING:
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                                                          2025:KER:59608
Crl. Appeal No.2353/2007

                            JOHNSON JOHN, J.
           ---------------------------------------------------------
                       Crl. Appeal No. 2353 of 2007
            ---------------------------------------------------------
                    Dated this the 8th day of August, 2025

                              JUDGMENT

In this appeal, the complainant before the trial court is challenging

the acquittal of the accused under Section 138 of the Negotiable

Instruments Act (for short 'N.I Act') as per the impugned judgment.

2. As per the complaint, the accused availed finance for

purchasing a vehicle from the complainant company after executing an

agreement on 08.01.2002. The accused committed default in payment of

the monthly instalments and there was a balance of Rs.57,000/- and

towards discharge of the said liability, the accused issued cheque dated

19.11.2004 for Rs.57,000/-. When the complainant presented the

cheque for collection, the same was dishonoured for the reason

'payment stopped by the drawer' as per the memo dated 15.2.2005 and

in spite of statutory notice, the accused failed to pay the cheque amount

to the complainant.

3. From the side of the complainant, PWs 1 and 2 were examined

and Exhibits P1 to P10 were marked, and from the side of the accused,

Exhibits D1 and D2 were marked.

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4. After considering the oral and documentary evidence on record

and hearing both sides, the trial court found that the complainant has

not succeeded in proving the offence under Section 138 of the N.I Act

against the accused and hence, the accused was acquitted.

5. Heard both sides and perused the records.

6. The learned counsel for the appellant argued that the accused

has not disputed the signature in Exhibit P1 cheque and that the trial

court ought to have found that the complainant is entitled for the benefit

of the presumptions under Sections 139 and 118 of the N.I Act.

7. But, the learned counsel for the accused/first respondent

argued that the complainant has not disclosed the alleged date of

execution and issuance of the cheque in the complaint or in the statutory

notice. Further, PWs 1 and 2 have no case that they witnessed the

execution and issuance of Exhibit P1 cheque by the accused to the

complainant and in the absence of prima facie evidence regarding

execution and issuance of cheque, the appellant/complainant cannot

claim the benefit of the presumptions under Sections 138 and 118 of the

N.I Act.

8. It is pertinent to note that even though the case of the

complainant company is that the accused executed an agreement in

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favour of the company on 08.01.2002, the said agreement is not seen

produced or marked in evidence. Exhibit P8 loan agreement is dated

18.11.2002 and Exhibit P9 loan agreement is dated 31.10.2002. The

case of the accused is that he had entered into an agreement with the

complainant company on 31.10.2002 for the purchase of a vehicle and

since he could not repay the instalments, he returned the vehicle to the

company and the company sold the vehicle.

9. It is also the case of the accused that the company initiated

arbitration proceedings against him and realised the balance amount in

execution and in support of the said contention, the accused also

produced Exhibit D1, copy of the execution petition, and Exhibit D2,

statement regarding full satisfaction in E.P No. 89 of 2006.

10. In M.S.Narayana Menon v. State of Kerala [2006(6) SCC

39], the Hon'ble Supreme Court considered the nature of the standard of

proof for rebutting the presumption under Section 139 of the N.I Act 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.

11. In Basalingappa v. Mudibasappa [2019 (5) SCC 418], the

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Hon'ble Supreme Court summarised the principles of law governing the

presumptions under Sections 118 and 139 of the N.I Act in the following

manner :

"(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

(ii) The presumption under Section 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, Section 139 imposed an evidentiary burden and not a persuasive burden.