IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941 Crl.L.P..No. 198 of 2019 AGAINST THE JUDGMENT IN ST NO.966/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS, PERAMBRA DATED 22-08-2017 PETITIONER/COMPLAINANT:

UMMER MUHAMMED S/O. ABDULKHADER, KANNITTAPARAMBIL (H), KOYILANDY TALUK, KOOTHALI P.O., KOOTHALI DESOM, PIN CODE - 673

725.

BY ADVS.

SRI.P.SANJAY SRI.P.A.MOHAMMED ASLAM RESPONDENT/ACCUSED NO.1&STATE:

1 V.P.ANTHRU MASTER S/O. KUNJAMMAD, VALIYAPARAMBIL (H), NARIPPATTA ANSOM, VANIMEL DESOM, VADAKARA TALUK, PIN CODE - 673 101.

2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN CODE - 682 031. BY ADV. SRI.T.K.KUNHABDULLA OTHER PRESENT:

(PP) SRI. KAMMAPPU THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON

05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R

This is a case wherein leave to file appeal from judgment dated 22.8.2017 of the Judicial First Class Magistrate Court I, Perambra, Kozhikode District in S.T.No.966/2011 is sought. 2. The facts of the case are narrated in brief hereunder:

The complainant and the accused were known to each other. The accused borrowed a sum of Rs.1,20,000/- from the complainant on 18.4.2011, agreeing to repay the same within two months. Evenafter the lapse of period of two months, the accused did not repay the amount. On 18.6.2011 one more month's time was sought for repayment and a cheque bearing No.082808 dated 18.7.2011 drawn from his account at Service Co-operative Bank, Kakkattil was issued. It was presented by the complainant before the Bank but was dishonoured for the reason funds insufficient. A memo dated 25.7.2011 was obtained by the complainant and a registered lawyer notice was caused to be served on the accused on 6.8.2011, demanding repayment of the amount covered by the cheque within 15 days. Notice was received by the accused on 13.8.2011 but he did not care to repay the amount within the 15 days' time granted. Therefore, the prosecution was launched for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(for short 'the N.I Act') against the accused.

3. The complaint filed before the Judicial First Class Magistrate Court I, Perambra, Kozhikode Distirct, was taken on file. It was registered on file as S.T.No.966/2011. On appearance of the accused, the particulars of the offence were read over to him and he pleaded not guilty. He faced trial. During trial, the complainant got himself examined as PW1 and Exts.P1 to P4 were marked. On the side of the defence, one Mr.Abdul Gafoor was examined as DW1 but documentary evidence was not adduced. The Judicial First Class Magistrate Court I, Perambra found on appreciation of evidence that complainant failed to establish the execution of Ext.P1 cheque by the accused for the discharge of an existing legal liability. Accordingly, the court found the accused not guilty for the offence punishable under Section 138 of the N.I Act and acquitted him under Section 255(1) Cr.P.C. To file appeal against the said judgment that leave is sought in this petition. 4. Sri.Mohammed Aslam P.A, the learned counsel for the petitioner has contended that leave is liable to be granted in the case for two reasons. The first ground was that the trial court on appreciation of evidence in an incorrect manner arrived at a finding that the complainant failed to establish the execution of the cheque. The second ground of argument was based on Bir Singh v. Mukesh Kumar, an unreported decision of the Apex Court in connected Crl.A Nos.230-231/2019 that once issuance of the cheque is admitted by the accused, the presumption under Section 139 of the N.I Act would operate in favour of the complainant and the burden will shifts to the accused to rebut the presumption. According to the learned counsel, issuance of the cheque is admitted and therefore, the onus is on the accused to rebut the presumption, under Section 1