Kerala High Court
Moosa Hajee vs Remla & Another on 31 July, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
CRL.A NO. 1622 OF 2008
JUDGMENT DATED 07.05.2008 IN CC NO.70 OF 1997 OF JUDICIAL
MAGISTRATE OF FIRST CLASS,VATAKARA
APPELLANT/COMPLAINANT:
MOOSA HAJEE, S/O.MAMMU IYYANATHTHAHAKUNIYIL HOUSE, (P.O)
KEEZHAL, VADAKARA BY POWER OF ATTORNEY, HOLDER, BROTHER
R.T.K.KUNHABDULLA, (P.O) KEEZHAL,, (VIA), VADAKARA.
BY ADVS.
SRI.C.VALSALAN
SRI.K.RAKESH ROSHAN
SMT.THUSHARA.V
RESPONDENTS/ACCUSED & STATE:
1 REMLA, W/O. IBRAHIMKUTTY,
THEKKUM MURI, KIZHAKKUM MURIYIL HOUSE,, THAZHAVA
PANCHAYATH, IDAPPARAYIL, QUILON, DISTRICT.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH
COURT OF KERALA, ERNAKULAM.
BY ADVS.
SHRI.ANOOP V.NAIR
SRI.M.R.JAYAPRASAD
SRI.P.MOHANDAS (ERNAKULAM)
DR.K.P.SATHEESAN (SR.)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.07.2025,
THE COURT ON 31.07.2025 DELIVERED THE FOLLOWING:
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JOHNSON JOHN, J.
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Crl. Appeal No. 1622 of 2008
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Dated this the 31st day of July, 2025
JUDGMENT
The judgment of the trial court acquitting the accused under
Section 138 of the Negotiable Instruments Act (‘NI Act‘ for short) is
challenged in this appeal by the complainant.
2. As per the complaint, Rs.50,000/- was due to the complainant
and towards discharge of the said liability, the accused issued Exhibit P1
cheque dated 30.07.1996 and when the cheque was presented for
collection, the same was dishonoured due to insufficiency of funds in the
account of the accused. It is stated that in spite of issuance of statutory
notice, the accused failed to pay the cheque amount to the complainant.
3. Before the trial court, from the side of the complainant, PWs 1
and 2 were examined and Exhibits P1 to P11 were marked. From the
side of the accused, Exhibit D1 marked.
4. After considering the oral and documentary evidence on record
and hearing both sides, the trial court acquitted the accused recording a
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finding that the complainant has not succeeded in establishing the
ingredients of the offence under Section 138 of the NI Act against the
accused.
5. Heard both sides and perused the records.
6. The learned counsel for the appellant argued that the finding of
the trial court that there is no proper service of statutory notice to the
accused is not legally sustainable. The learned counsel for the
respondent/accused argued that the complainant has not disclosed the
date of execution and issuance of the cheque in the complaint or in the
chief affidavit of PW1, power of attorney holder who filed the complaint.
It is argued that in the absence of prima facie evidence regarding the
execution and issuance of cheque and service of statutory notice in the
correct address, there is no reason to interfere with the finding of the
trial court that the complainant has not succeeded in proving the
ingredients of the offence under Section 138 of the NI Act.
7. A perusal of the complaint and the chief affidavit of PW1 shows
that the date of execution and issuance of Exhibit P1 cheque is not
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disclosed. In cross examination, PW1 stated that the accused handed
over the cheque to him while they were in the Police Station and at that
time, the complainant was also present. According to PW1, the accused
handed over the cheque on 30.07.1996.
8. However, PW1 has nothing to say when the counsel for the
accused suggested that the complainant was abroad as on 30.07.1996.
In another part of the cross examination, PW1 admitted that the
transaction was between the complainant and the husband of the
accused.
9. When the complainant is examined as PW2, he categorically
admitted in cross examination that the accused has not handed over any
cheque to him and that he was abroad at the time when the accused
handed over the cheque to his elder brother. PW2 also admitted that he
had no occasion to see the accused before.
10. The power of attorney dated 07.05.1997 executed by PW2 in
favour of PW1 is marked as Exhibit D1. It is pertinent to note that PW2
has also not mentioned the date of execution and issuance of the cheque
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in the chief affidavit. But, in cross examination, he stated that the
accused issued the cheque on 15.03.1996.
11. The learned counsel for the appellant argued that the
complainant is entitled for the presumption under Section 139 of the NI
Act that the cheque was issued in discharge of a debt. In Kali Ram v.
State of H.P. [1973 KHC 634], a three Judge Bench of the Honourable
Supreme Court held thus:
“23. …One of the cardinal principles which has always to
be kept in view in our system of administration of justice for
criminal cases is that a person arraigned as an accused is
presumed to be innocent unless that presumption is rebutted by
the prosecution by production of evidence as may show him to
be guilty of the offence with which he is charged. The burden of
proving the guilt of the accused is upon the prosecution and
unless it relieves itself of that burden, the courts cannot record a
finding of the guilt of the accused. There are certain cases in
which statutory presumptions arise regarding the guilt of the
accused, but the burden even in those cases is upon the
prosecution to prove the existence of facts which have to be
present before the presumption can be drawn. Once those facts
are shown by the prosecution to exist, the court can raise the
statutory presumption and it would, in such an event, be for the
accused to rebut the presumption. The onus even in such cases
upon the accused is not as heavy as is normally upon the
prosecution to prove the guilt of the accused. If some material is
brought on the record consistent with the innocence of the
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accused which may reasonably be true, even though it is not
positively proved to be true, the accused would be entitled to
acquittal.”
12. The learned counsel for the accused/respondent argued that
the specific case of the accused is that she never had any transaction
with the complainant and that her blank signed cheque was stolen by
the complainant from the possession of her husband while he was
abroad and a perusal of the amended address of the accused in the
complaint would show that the same does not tally with the address of
the accused in Exhibit P5, postal cover, and Exhibit P3, statutory notice
dated 15.11.1996. The endorsement in Exhibit P5, postal cover, would
show that the same was returned unserved for the reason ‘house name
differs’.
13. It is not in dispute that when summons could not be served to
the accused in the original address mentioned in the complaint, the
complainant has taken steps for amending the address and
subsequently, summons was served to the accused in the amended
address. It is well settled that the presumption as to the service of
notice by registered post under Section 27 of the General Clauses Act
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will be attracted only when notice is issued by registered post in the
correct address. In Sali Mohan v. Kolazhi Grama Panchayath,
Thrissur and Others [2015 (4) KHC 261], this Court held thus :
“18. As I have already noticed, S.27 of the General Clauses Act,
1897 as well as S.26 of the Interpretation and General Clauses
Act, 1125 do not lay down an inflexible or conclusive
presumption as to service of notice by registered post. It only
states that, a presumption as to service of document by post can be
drawn if the circumstances enumerated in S.27 of the Central Act
or S.26 of the State Act are present, unless the contrary is proved.
One of the essential circumstances for drawing such a
presumption as to service of document by post is that, the
registered postal article should be ‘properly addressed’. A postal
article with incomplete or indefinite address, without specifying
some definite place for delivery, such as a particular house or
building, or a particular post box, or a particular number in a
street, along with the name of the locality where the addressee
resides or carries on business or employed, cannot be termed as
one ‘properly addressed’ in order to draw a presumption as to
service of document by post, under S.27 of the Central Act or
S.26 of the State Act, or under S.16 or S.114 of the Evidence
Act.”
14. A perusal of the address of the accused in the complaint,
Exhibit P5 postal cover as well as Exhibit P10 returned summons and
Exhibit P11 memo stating the correct address of the accused would
clearly show that there was no proper service of statutory notice as
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contemplated under Section 138(b) of the NI Act to the accused and
therefore, there is no reason to interfere with the finding of the trial
court in this regard.
15. In Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal
[(1999) 3 SCC 35], the Honourable Supreme Court held that the non
existence of consideration for the cheque can be proved by raising a
probable defence and if it is shown that the existence of consideration
was improbable or doubtful or the same was illegal, the onus would shift
to the complainant. In Harbhajan Singh v. State of Punjab (AIR
1966 SC 97), the Honourable Supreme Court held that the onus on an
accused person might well be compared to the onus on a party in civil
proceedings, and just as in civil proceedings the court trying an issue
makes its decision by adopting the test of probabilities
16. The Honourable Supreme Court considered the nature of the
standard of proof required for rebutting the presumption under Section
139 of the Negotiable Instruments Act in M.S.Narayana Menon v.
State of Kerala (2006 (6) SCC 39), 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. The Honourable Supreme Court in Basalingappa v.
Mudibasappa [(2019) 5 SCC 418] summarised the principles of law
governing presumptions under Sections 118(a) and 139 of the NI Act in
the following manner:
(i) Once the execution of cheque is admitted S.139 of the Act
mandates a presumption that the cheque was for the discharge of any
debt or other liability.
(ii) The presumption under S.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, S.139 imposed an evidentiary burden and
not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to
support his defence.
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18. As noticed earlier, the evidence of PWs 1 and 2 regarding the
execution and issuance of cheque does not tally and the complainant has
also failed to disclose the date of execution and issuance of cheque in
the complaint and the statutory notice.
19. 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.
20. On a careful re-appreciation of the entire evidence, I find that
the complainant has not succeeded in proving the ingredients of the
offence under Section 138 of the Act against the accused and therefore,
this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications,
if any pending, shall stand closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
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