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2023 Supreme(Online)(KER) 30797
HIGH COURT OF KERALA
V. G. Arun, J
JAMEELA BEEVI – Appellant
Versus
UNNIKRISHNAPILLAI – Respondent
CRL.A 1218 2016
SRI.C.RAJENDRAN, SMT.ANITHA RAVINDRAN, SMT.T.RESHMA
The presumption under Section 139 of the N.I. Act remains until successfully rebutted by the accused, which did not occur in this case.
Headnote:
Negotiable Instruments - Dishonour of Cheque - N.I. Act - Sections 138, 139, 357 - The court emphasized the importance of presumption under Section 139 and clarified that mere suggestions in cross-examination cannot rebut this presumption, allowing for the conviction under Section 138.
Fact of the Case:
The appellant accused the first respondent of failing to repay a loan of Rs.1,50,000, issuing a cheque that was dishonoured. The trial court convicted the respondent, but a subsequent appeal led to acquittal due to perceived failure to prove execution of the cheque.
Issues: Whether the appellate court erred in acquitting the first respondent by ignoring the established presumption under Section 139 of the N.I. Act.
Ratio Decidendi: The court ruled that suggestions in cross-examination do not equate to evidence and did not establish the first respondent's defense, thus upholding the trial court's conviction under Section 138.
Final Decision: The appellate court's decision is overturned; the first respondent is found guilty under Section 138 and sentenced to pay a fine and undergo a reduced sentence.
JUDGMENT
Dated this the 05th day of June, 2023 Appellant is the complainant in S.T.No.391 of
2009 of the Judicial First Class Magistrate Court-IV, Kollam. The complaint was filed, alleging commission of offence under Section 138 of the N.I.Act by the first respondent. In her complaint, the appellant alleged that the first respondent had borrowed Rs.1,50,000/- from her, promising to repay the money in two months. Later, the first respondent issued Ext.P1 cheque dated 20.09.2007, in discharge of the liability. The cheque, on presentation, was dishonoured for insufficiency of funds. Although statutory notice was issued to the first respondent, informing him about the dishonour and requiring him to pay the amount, neither was any reply sent nor the amount paid.
2. The trial court, on appreciation of evidence and consideration of the legal contentions, found the first respondent guilty and thereupon, convicted and sentenced him to undergo simple imprisonment for three months and directed to pay fine of Rs.1,50,000/-, with default sentence of 20 days. The fine, if remitted, was directed to be paid as compensation to the appellant under Section 357 Cr.P.C.
3. Aggrieved by the conviction and sentence, the first respondent preferred Crl.Appeal No.241 of 2011 before the Additional Sessions Court (Adhoc)-II, Kollam. The appellate court, on re-appreciation of evidence, found the complainant to have failed in proving execution of the cheque in his favour. Consequently, the appeal was allowed and the accused, acquitted.
4. Learned Counsel for the appellant contended that the reasoning adopted by the court below is patently wrong. It is submitted that the appellant had proved the execution of Ext.P1 cheque in his favour and burden was on the first respondent to rebut the presumption under Section 139 . Surprisingly, based on certain suggestions made to the appellant during cross-examination, the court below held that the execution was not proved and hence, the presumption under is not attracted. Such conclusion was arrived at on the basis of the appellant's oral testimony that her daughter had lent money to various persons and after she died in 2008, some of the complaints instituted by the deceased daughter, were prosecuted by the appellant, after transposing herself as the complainant. It is contended that, by focusing on that portion of the testimony alone, the court below omitted to take note of the appellant's categoric statement that the cheque was handed over to her directly by the first respondent. The appellant also stated that she had worked abroad for 31 years, was a business woman and had sufficient funds to advance an amount of Rs.1,50,000/-. The fact that no reply was sent by the first respondent nor any explanation offered during his questioning under Section 313 Cr.P.C were also not considered.
5. Reliance was placed on the decision in Bir Singh v Mukesh Kumar [ (2019) 4 SCC 197 ] to contend that, even a blank cheque leaf voluntarily signed and handed over by the accused towards some payment would attract the presumption under Section 139 and mere filling up of the cheque by the payee would not invalidate the cheque or amount to alteration. Referring to the decisions inKalamani Tex (M/s.) and another v. P.Balasubramanian [ (2021) 5 SCC 283 ] and Sumeti Vij v. M/s.Paramoung Tech Fab Industries [AIR 2021 SC 1281], it was argued that, although the accused can rebut the presumption under , based on preponderance of probabilities, no such attempt was made by the first respondent.
6. Learned Counsel for the first respondent contended that, the lower court having re-
appreciated the evidence and found the appellant to have failed to prove the execution of the cheque, it will be inappropriate for this Court to interfere with the judgment of acquittal. According to the Counsel, the testimony of the appellant would show that the transaction was actually between the appellant's daughter and the first respondent. The appellant also fai
