Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JOHNSON JOHN, J.
P.K. Ahammed S/o Kunhabdulla – Appellant
Versus
State of Kerala – Respondent
Crl. Appeal No. 365 of 2007
Decided On : 11-04-2024
Negotiable Instruments Act - Dishonour of Cheque - Section 138 - 139 - 118(a) - 139 - 118(a) - 138 - 139
Fact of the Case:
The accused borrowed an amount from the complainant and issued two cheques, which were dishonoured due to insufficiency of funds. The trial court acquitted the accused in one case but found him guilty in the other. The appellate court acquitted the accused in both cases.
Finding of the Court:
The court found that the accused had succeeded in rebutting the statutory presumptions in favor of the complainant and acquitted the accused.
Issues: The main issue was whether the accused had succeeded in rebutting the statutory presumptions in favor of the complainant under the Negotiable Instruments Act.
Ratio Decidendi: The court relied on the principles established in various Supreme Court judgments, emphasizing the standard of proof required to rebut the statutory presumption under Sections 118(a) and 139 of the NI Act.
Final Decision: The appeal was dismissed, and the accused was acquitted.
2. The appellant is the complainant. The case of the complainant is that while the complainant and the accused were working in Qatar, the accused borrowed an amount equivalent to Indian Rs. 11,50,000/- from the complainant on 07.12.1999 and subsequently issued two cheques, one for Rs. 4,00,000/- and other for Rs. 7,50,000/- and when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds and in spite of issuance of statutory notice, the accused failed to pay the cheque amount.
3. The complainant filed C.C. No. 176 of 2002 with respect to Exhibit P1 cheque for Rs. 4,00,000/- and C.C. No. 240 of 2002 with respect to Exhibit P2 cheque for Rs. 7,50,000/-.
4. As per the order in Crl. M.P. No. 964 of 2003, joint trial was conducted and from the side of the complainant, PW-1 was examined and Exhibits P1 to P10 were marked. From the side of the accused, DW-1 was examined and Exhibits D1 and D2 were marked. Assistant Director of Documents, Forensic Science Laboratory, Thiruvananthapuram was examined as CW-1 and the report was marked as Exhibit C1.
5. After considering the oral and documentary evidence on record and hearing both sides, the trial court acquitted the accused with respect to Exhibit P2 cheque in C.C. No. 240 of 2002 and the accused was found guilty of the offence under Section 138 of the NI Act in C.C. No. 176 of 2002 with respect to Exhibit P1 cheque and he is sentenced to undergo simple imprisonment for a period of two months and also to pay a fine of Rs. 50,000/- to the complainant under Section 357(3) Cr.P.C.
6. Against the trial court judgment, the accused filed Crl. Appeal No. 161 of 2005 and the complainant filed Crl. R.P. No. 27 of 2005 seeking enhancement of sentence before the District and Sessions Judge, Vadakara and as per the impugned common judgment dated 22.12.2005 in Crl. Appeal No. 161 of 2005 and Crl. R.P. No. 27 of 2005, the Crl. Revision Petition was dismissed and the Crl. Appeal was allowed and the accused was acquitted of the offence under Section 138 of the NI Act in C.C. No. 176 of 2002.
7. Heard Sri. K. Ramkumar, the learned Senior counsel for the appellant, Sri. T.G. Rajendran, the learned counsel for the second respondent and Sri. Vipin Narayan, the learned Public Prosecutor and perused the records.
8. The learned counsel for the appellant argued that the issuance of the cheque and the signature are not disputed and the learned Sessions Judge wrongly considered the evidence relating to Exhibit P2 cheque in C.C No. 240 of 2002 to arrive at a finding that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant.
9. But, the learned counsel for the accused/second respondent pointed out that the trial court conducted joint trial of both the cases as per the order in Crl. M. P. No. 964 of 2003 and since the evidence in C.C. Nos. 176 and 240 of 2002 are the same, there is no illegality in re-appreciating the entire evidence by the District Court in appeal and there is no valid ground to interfere with the impugned judgment.
10. The specific case of the defence is that the accused had borrowed only Rs. 4,00,000/- from the complainant after entrusting Exhibit P1 cheque and thereafter, he made a payment of Rs. 3,50,000/- and he also issued another cheque for the balance amount of Rs. 50,000/- to the complainant. The case put forward by the defence is that the complainant altered the cheque for Rs. 50,000/- by inserting the digit ‘7’ before the digit ‘5’ in the figure ‘50,000/-’ so as to make it appear that the cheque is one f
The standard of proof required to rebut the statutory presumption under Sections 118(a) and 139 of the NI Act is preponderance of probabilities, and the accused is not required to prove his case beyo....
The main legal point established in the judgment is the onus on the accused to raise a probable defense and the requirements for rebutting the presumption under Section 139 of the Negotiable Instrume....
The presumption of debt under Section 139 of the Negotiable Instruments Act is not rebutted by mere denial; the accused must provide credible evidence to support their defense.
The burden of proof in cases of dishonored cheques lies on the accused to raise a probable defense, and the presumption in favor of the holder is rebuttable.
The presumptions under sections 138 and 139 of the NI Act favor the holder, shifting the burden to the accused to rebut the claims of liability.
The presumption under Section 139 of the NI Act that a cheque is issued for discharge of a debt or liability unless proven otherwise, and the accused's burden to raise a probable defense to rebut the....
The presumption under Section 139 of the NI Act applies unless substantively rebutted, and any alteration in the cheque must be proven materially by the accused.
The judgment emphasizes the principles of presumption in favor of the accused under Section 139 of the NI Act and the requirement of thorough scrutiny before reversing an order of acquittal.
Admission of cheque execution triggers Sections 118/139 NI Act presumptions of debt; burden on accused to rebut by evidence; trial acquittal ignoring presumption and shifting onus to complainant is p....
The presumption of liability under the NI Act is rebuttable, and the burden of proof lies on the complainant to establish the existence of a legally enforceable debt.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
