Kerala High Court

Noble Finance Company vs Mani P on 16 October, 2025

Crl.Appeal No.283 of 2010             1




                                                         2025:KER:76887


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR. JUSTICE JOHNSON JOHN

  THURSDAY, THE 16TH DAY OF OCTOBER 2025 / 24TH ASWINA, 1947

                         CRL.A NO. 283 OF 2010

         AGAINST THE ORDER DATED 05.02.2010 IN Crl.L.P. NO.116

OF 2010 OF HIGH COURT OF KERALA ARISING OUT OF THE JUDGMENT

DATED 02.12.2009 IN ST NO.68 OF 2009 OF JUDICIAL MAGISTRATE

OF FIRST CLASS -II, THODUPUZHA.

APPELLANT:

             NOBLE FINANCE COMPANY, REPRESENTED BY ITS
             PARTNER, P.R.SUDHEER KUMAR, PULICKAL HOUSE,
             KARIKODE VILLAGE, THODUPUZHA TALUK.

             BY ADVS. SRI.R.BINDU (SASTHAMANGALAM)
             & SRI.PRASANTH M.P
RESPONDENT:

     1       MANI P, S/O PERUMAL,
             CHERUMATTATHIL HOUSE, KOTTAMALA P.O.,
             ULUPPUNNI, IDUKKI DISTRICT.

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

             R1 BY ADV.PRASOON SUNNY
             R2 BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.


      THIS    CRIMINAL      APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
15.10.2025, THE COURT ON 16-10-2025 DELIVERED THE FOLLOWING:
 Crl.Appeal No.283 of 2010          2




                                                     2025:KER:76887




                   JOHNSON JOHN, J.
  -----------------------------------------------
             Crl.Appeal No.283 of 2010
  -----------------------------------------------
     Dated this the 16th day of October, 2025.

                            J U D G M E N T

This appeal by the complainant is against the

acquittal of the accused for the offence under

Section 138 of the Negotiable Instruments Act, 1881

('N.I Act' for short).

2. As per the complaint, the accused executed a

hire purchase agreement in favour of the complainant

finance company on 18-01-2006 and received

Rs.1,01,250/- agreeing to repay the said loan amount

in 30 equal monthly installments of Rs.3,375/- each

starting from 18-02-2006 onwards. But subsequently,

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the accused committed default in payment of the

installments and thereafter towards the amount due to

the complainant company, the accused issued a cheque

dated 22-09-2007 for Rs.1,00,000/-. 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 to the complainant. It is also stated

that the complainant finance company is a registered

partnership firm and the partner, who signed the

complaint is authorized to file the complaint as per

resolution dated 22-03-2003.

3. Before the trial court, from the side of the

complainant, PW1 examined and Exhibits P1 to P8 were

marked and from the side of the accused, DW1 examined

and Exts.D1 and D2 were marked.

4. After considering the oral and documentary

2025:KER:76887

evidence on record and hearing both sides, the trial

court found that PW1 is not authorized to file a

complaint in the name of the firm in the absence of a

provision analogous to Order XXX of C.P.C in the

Cr.P.C and therefore, the accused is found not guilty

and acquitted under Section 255(1) Cr.P.C.

5. Heard Adv.R.Bindu Sasthamangalam, the

learned counsel for the appellant, Adv.Prasoon Sunny,

the learned State Brief representing the first

respondent/accused and Sri.Alex M.Thombra, the

learned Senior Public Prosecutor for the second

respondent.

6. The learned counsel for the appellant argued

that any partner including the Managing Partner who

is an agent of the firm is entitled to file a

complaint on behalf of the firm. But the learned

counsel for the accused/first respondent argued that

no document is produced to show that the person who

2025:KER:76887

signed the complaint representing the firm is a

partner of the firm or that he is an agent of the

firm.

7. In Nazar v. State of Kerala [2007(4) KHC

882], this Court held that in the absence of any

enabling provision in the Cr.P.C the Managing Partner

is not entitled to file a complaint in the name of

the firm. However, any partner including the Managing

Partner who is an agent of the firm is entitled to

file a complaint on behalf of the firm. In the

absence of any document to show that the person who

signed the complaint is a partner or an agent of the

firm, I find no reason to disagree with the finding

of the trial court in this regard.

8. The specific case of the complainant

finance company is that the accused executed a hire

purchase agreement on 18-01-2006 and availed a loan

of Rs.1,01,250/-. A perusal of Ext.P1 hire purchase

2025:KER:76887

agreement dated 18-01-2006 shows that the complainant

finance company is the owner of the vehicle bearing

registration No. KL6 3184 and the said vehicle was

supplied to the accused who is the hirer and Clause

II in Ext.P1 would show that the total hire amount is

Rs.1,01,250/-. Further, Clause III of Ext.P1 shows

that on execution of the said agreement, the hirer

shall pay the owner a sum of Rupee ONE in

consideration of the option to purchase given to the

Hirer by Clause IV.

9. It cannot be disputed that in a hire

purchase agreement normally the hirer has to pay the

hire amount in equal monthly installments. There is

nothing in Ext.P1 agreement to show that the

complainant company advanced a loan of Rs.1,01,250/-

to the accused. In cross examination PW1 admitted

that the registration certificate and other documents

of the vehicle are in the possession of the

2025:KER:76887

complainant firm. According to PW1, the accused paid

two installments. He denied the suggestion that the

total hire amount was only Rs.75,000/-. PW1 also

denied the suggestion that he has no authority to

represent the complainant firm. The Secretary of

Service Co-operative Bank, Thodupuzha is examined as

DW1. Ext.D1 is the copy of the account opening form

of PW1 and Ext.D2 is the copy of the ledger relating

to Ext.D1 account.

10. It is well settled that the standard of

proof which is required from the accused to rebut

the statutory presumptions under Sections 118 and

139 of the N.I Act is preponderance of

probabilities and that the accused is not required

to prove his case beyond reasonable doubt.

11. In Basalingappa v. Mudibasappa ((2019) 5 SCC

418), the Hon'ble Supreme Court summarised the

principles of law governing the presumptions under

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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. "

12. In ANSS Rajashekar v. Augustus Jeba

Ananth [2019 (2) KHC 155= 2019 (1) KLD 492], it

was held that when evidence elicited from

complainant during cross examination creates

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serious doubt about the existence of debt and

about the transaction and the complainant fails to

establish the source of funds, the presumption

under Section 139 is rebutted and the defence case

stands probabilised.

13. The decision of the Hon'ble Supreme Court

in Sanjabij Tari v. Kishore S.Borcar [2025(6) KHC