Kerala High Court
Shriram Transport Finance Co.Ltd vs State Of Kerala on 23 September, 2025
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Crl. Appeal No. 2485/2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 23RD DAY OF SEPTEMBER 2025 / 1ST ASWINA, 1947
CRL.A NO. 2485 OF 2008
JUDGMENT DATED 18.06.2008 IN ST NO.177 OF 2006 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II (FOREST OFFENCES), MANJERI
APPELLANT/COMPLAINANT:
SHRIRAM TRANSPORT FINANCE CO.LTD.
(FORMERLY KNOWN AS SHRIRAM INVESTMENTS LTD) HAVING ITS
REGISTERED OFFICE AT 123, ANGAPPA NAICKEN STREET, CHENNAI.
REP. BY POWER OF ATTORNEY HOLDER, SRI.VENUGOPALAN P.T., LEGAL
CONSULTANT, SHRIRAM TRANSPORT FINANCE CO. LTD.,
SREEPADAM BUILDING, CHEROOTY RAOD, CALICUT.
BY ADV SHRI.RAJESH NAMBIAR
RESPONDENTS/STATE & ACCUSED:
1 STATE OF KERALA, REPRSENTED BY PROSECUTOR,
HIGH COURT OF KERALA.
2 P.K.MUJEEB REHMAN, S/O.MUHAMMED
POOKKODAN HOUSE, PALLISSERI, ANCHACHAUDI (P.O), KALIKAVU.
BY ADV SHRI.P.VENUGOPAL
R1 BY SRI. ALEX M. THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2025, THE
COURT ON 23.09.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 2485/2008
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JOHNSON JOHN, J.
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Crl. Appeal No. 2485 of 2008
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Dated this the 23rd day of September, 2025
JUDGMENT
This appeal by the complainant is against the acquittal of the
accused under Section 138 of the Negotiable Instruments Act, 1881 ('N.I
Act' for short).
2. As per the complaint, the accused issued cheque dated
22.07.2005 for Rs.1,35,000/- in discharge of the amount due to the
complainant company. 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.
3. Before the trial court, PW1 examined and Exhibits P1 to P11
were marked from the side of the complainant and from the side of the
accused, DW1 examined and Exhibits D1 to D4 were marked.
4. After considering the oral and documentary evidence on record
and hearing both sides, the trial court found that the complainant failed
to prove the execution and issuance of the cheque and the existence of a
legally enforceable debt and hence, the accused was found not guilty
and acquitted.
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5. Heard Sri. Rajesh Nambiar, the learned counsel for the
appellant, Sri. P. Venugopal, the learned counsel for the accused/second
respondent and Sri. Alex M. Thombra, learned Senior Public Prosecutor
for the first respondent.
6. The learned counsel for the appellant argued that the accused
has not disputed the signature in the 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/second respondent
argued that the complainant has not disclosed the nature of the
transaction, date of execution and issuance of the cheque in the
complaint or in the chief affidavit of PW1 and that the evidence of PW1
in cross examination regarding the alleged transaction does not tally
with the averments in the complaint.
8. The cheque dated 22.07.2005 bearing number '0274103' is
marked as Exhibit P2 and the copy of the lawyer notice dated
08.08.2005 is marked as Exhibit P5.
9. In paragraph 2 of the chief affidavit of PW1, it is stated that the
accused availed Rs.1,35,000/- from the complainant company on
05.1.2005 in connection with hire purchase of vehicle bearing
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registration No. KL- 13A-5193. It is also stated that including the finance
charge and insurance deposit, the accused was bound to pay
Rs.1,74,376/- to the complainant company. Subsequently, on
22.7.2005, at the time of settling the hire purchase account, the accused
agreed to pay Rs.1,35,000/- and issued cheque bearing No. 0274103
dated 22.7.2005 to the complainant company.
10. But, in cross examination, PW1 would say that the transaction
was a loan transaction and the accused availed the loan on 05.01.2005.
PW1 further admitted that the complainant has not produced the
documents in connection with the loan transaction. According to PW1,
Exhibit P2 cheque was written by the person who accompanied the
accused and all the writings in Exhibit P2 cheque, except the signature,
is in a different ink. PW1 denied the suggestion that Exhibit P2 cheque
was received from the accused as security, when he availed finance for
the vehicle bearing registration No. KL-9B-3690. In another part of the
cross examination, PW1 stated that Exhibit P11 series is the copy of the
payment history and account details and as per Exhibit P11, Rs.70,200/-
was paid towards the account of vehicle bearing registration No. KL-
9B-3690 and Rs.254/- was paid towards the account of the vehicle
bearing registration No. KL-10 -6494.
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11. In another part of the cross examination, PW1 stated that the
agreement between the complainant company and the accused is dated
05.01.2005. But, he would say that the amount was paid to the accused
as per cheque dated 31.12.2004. From Exhibit P11 also, it can be seen
that as per cheque No.377604 dated 31.12.2004 and another cheque
No. 377605 dated 31.12.2004, Rs.77,030/- and Rs.57,970/-
respectively was paid to the hirer, P. K Mujeeb Rahman. It is pertinent to
note that the transaction regarding Exhibit P2 cheque bearing
No.0274103 dated 22.07.2005 is not reflected in Exhibit P11.
12. The accused, when examined as DW1, deposed that he
availed a loan of Rs.1,19,680/- for purchasing vehicle bearing
registration No. KL-13A-5193 and that as per Exhibit D1 receipt, he
remitted Rs.29,460/- According to DW1, the blank cheque entrusted as
security for availing the loan in connection with the vehicle bearing
registration No.KL-9P-3690 was misused by the complainant company
for filing this case and that the complainant company has taken
possession of the said vehicle and sold the same in auction. Exhibit D2 is
the copy of the lawyer notice from the complainant to the accused in this
connection. The evidence of DW1 further shows that there is an
arbitration case in connection with vehicle bearing registration No.
KL-9P-3690.
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13. In Basalingappa v. Mudibasappa ((2019) 5 SCC 418),
the 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.
(v) It is not necessary for the accused to come inthe witness
box to support his defence."
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14. 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 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.
15. In APS Forex Services Pvt. Ltd. v. Shakti International
Fashion Linkers and Others [2020 (1) KHC 957 = 2020 (1) KLD 313],
it was held that whenever the accused questioned the financial capacity
of the complainant in support of his probable defence despite the
presumption under Section 139 onus shifts again on the complainant to
prove his financial capacity.
16. 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.
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17. 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. It is also well
settled that the standard of proof, in order to rebut the statutory
presumption, can be inferred from the materials on record and
circumstantial evidence.
18. On a careful consideration of the evidence in this case on the
basis of the above legal principles, it is apparent that there existed a
contradiction in the complaint moved by the appellant as against the
evidence of PW1 regarding the nature of the transaction, execution and
issuance of the cheque. I find that the evidence of PW1 in cross
examination and the evidence of DW1 and Exhibits D1 to D4 probabilise
the version of the defence, especially in view of the fact that the
complainant has not disclosed the nature of the transaction, the date of
execution and issuance of cheque in the complaint or in the chief
affidavit of PW1 and therefore, I find no reason to interfere with the
finding in the impugned judgment that the complainant has not
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succeeded in proving the offence under Section 138 of the N.I Act
against the accused. Therefore, I find that this appeal is liable to be
dismissed.
In the result, this appeal is dismissed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
