Kerala High Court
Shakkira Aboobacker vs State Of Kerala on 31 July, 2025
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Crl. R.P.No.636 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
CRL.REV.PET NO. 636 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 29.02.2016 IN Crl.A
NO.228 OF 2014 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST),
MANJERI ARISING OUT OF THE ORDER/JUDGMENT DATED 19.06.2014 IN
ST NO.794 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
PONNANI
REVISION PETITIONER/S:
SHAKKIRA ABOOBACKER
AGED 52 YEARS
W/O.VALIYIL ABOOBACKER, VATTAMKULAM P.O.,
VATTAMKULAM, AMSOM, DESOM, PONNANI TALUK, MALAPPURAM
DISTRICT 679 577
BY ADVS.
SHRI.VARGHESE C.KURIAKOSE
SMT.SEENU SADIQUE
RESPONDENT/S:
1 STATE OF KERALA
REP, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
2 SABIRA
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AGED ABOUT 32 YEARS, KHALEEL MANZIL, NARIPARAMBU,
THAVANOOR, PONNANI TALUK, MALAPPURAM DISTRICT.
OTHER PRESENT:
SRI.SANAL. P. RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 31.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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ORDER
Under challenge in this revision petition is
the conviction and sentence rendered against the
revision petitioner under Section 138 of the N.I.Act.
2. The revision petitioner is the accused
in S.T.No.794 of 2011 on the files of the Judicial
First Class Magistrate Court, Ponnani.
3. The case of the complainant is that the
accused who is acquainted with her, during 2004-05,
approached the complainant and promised that she will
give shares in Ushus English Medium School and
collected Rs.10 lakhs. Later, the shares were not
issued as promised and the complainant demanded back
the amount paid by her. Then, towards the discharge
of the above liability, the accused issued Ext.P1
cheque dated 05.03.2010 for Rs.1,00,000/-. When the
complainant presented the cheque for encashment, it
got dishonoured stating that ‘funds are insufficient’
and the lawyer’s notice issued did not evoke any
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response, except a false reply notice. Hence, the
complainant approached the trial court by filing the
afore complaint.
4. In the trial court, from the side of the
complainant, PW1 was examined and Exts.P1 to P7
documents were marked. When examined under Section
313 Cr.P.C, the accused denied all the incriminating
circumstances appearing against her in evidence and
contended that she is innocent. The accused stated
that she has not received any amount from the
complainant and has not issued the cheque to her.
According to her, the father-in-law of the
complainant had advanced Rs.4,00,000/- to the husband
of the accused for construction of the school and
after the death of the father-in-law of the
complainant and the husband of the accused, the
brother-in-law of the complainant, by name, Mufeed
Rahman came to her house and quarrelled with her. At
that time, the accused was forced to issue blank
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cheques. Even though an opportunity was granted, no
evidence was adduced from the side of the accused.
The trial court, on an appreciation of the evidence
on record, found the accused guilty and convicted her
under Section 138 of the N.I.Act. The accused was
sentenced to undergo simple imprisonment for a period
of three months under Section 138 of the N.I.Act. The
accused was also ordered to pay a compensation of
Rs.1,00,000/ to the complainant under Section 357(3)
of Cr.P.C, with a default clause.
5. The accused carried the matter in appeal
by filing Crl.A.No.228 of 2014 before the Special
Court for SC/ST (PoA) Act Cases/Additional Sessions
Court, Manjeri. The said court, by judgment dated
29.02.2016, allowed the appeal in part and while
confirming the conviction, the sentence was modified
and reduced to one of simple imprisonment till the
rising of court and to pay a fine of Rs.1,00,000/-
under Section 138 of N.I.Act. The accused was also
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ordered to undergo simple imprisonment for a period
of three months in case of committing default in
payment of the fine and the fine amount was ordered
to be paid to the complainant as compensation under
Section 357(1)(b) of Cr.P.C.
6. Heard Sri.Albin A.Joseph, the learned
counsel for the revision petitioner and Sri.Istinal
Abdullah, the learned counsel for the second
respondent. Perused the records.
7. The learned counsel for the revision
petitioner submitted that both the trial court as
well as the appellate court, failed to appreciate the
evidence in a proper perspective and has arrived at a
wrong conclusion of guilt against the accused. He, by
relying on the decision in Hari P.C v. Shine Varghese
[2025 KHC 805], contended that if the debt is
created by a cash transaction above Rs.20,000/- in
violation of the provisions of the IT Act, the same
cannot be considered as a legally enforceable debt,
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unless there is a valid explanation for the same. He
argued that the complainant has not proved the
financial capacity to advance the money and both the
trial court and the appellate court have wrongly
placed reliance on Ext.P7, which is not proved as
required by law. He, by relying on the decision in
Ashok Singh v. State of Uttar Pradesh [2025 KHC
6294], contended that the accused has been able to
demonstrate through the cross-examination of PW1 that
PW1 did not have the capacity to source the money.
Hence, he prayed that this revision petition may be
allowed.
8. Per contra, the learned counsel for the
2nd respondent supported the impugned judgments and
contended that there are no grounds to interfere with
the same. He argued that the evidence of PW1
regarding the transaction and the issuance of the
cheque, is credible and cogent and nothing has been
brought out in her cross-examination to disbelieve
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her. He further submitted that PW1 has given a
vivid description of the manner in which she had
sourced the money for advancing it to the accused and
there is nothing to disbelieve her on this aspect. He
contended that the accused has not adduced any
evidence to prove her version that the cheque has
been forcefully taken from her and hence, has failed
in rebutting the statutory presumptions available
in favour of the complaiant. He also submitted that
the decision in Hari P.C’s case (cited supra) is not
applicable to this case since, the said decision
applies only prospectively and the point has not been
specifically raised during the trial.
9. The materials on record show that the
complainant has got herself examined as PW1 and has
marked Exts.P1 to P7 documents to prove her case. PW1
has filed a proof affidavit in tune with the
averments in the complainant. She deposed that the
accused has approached her by promising shares in the
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school by name ‘Ushus English Medium School’ during
2004-05 and has collected from her Rs.10,00,000/- on
various occasions. Thereafter, the accused did not
issue the shares as promised and when she sought to
return the money, the accused signed and issued
Ext.P1 cheque dated 05.03.2010 for Rs.1 lakh. When
the cheque was presented for collection, it got
returned stating that the ‘funds are insufficient’.
Thereafter, when she issued a statutory notice to the
accused demanding the payment of amount covered by
the cheque, Ext.P6 reply was sent taking false and
untenable contentions.
10. The evidence of PW1 coupled with Ext.P1
is sufficient to hold that the complainant has
discharged the initial onus cast upon her in proving
the execution of the cheque and in establishing the
basis for drawing the presumptions under Sections 118
and 139 of the N.I.Act. Now it is for the accused to
rebut the said presumptions at least by preponderance
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of probabilities. She can rebut the presumptions
either by adducing evidence or by cross-examining PW1
thereby, bringing in probabilities in her favour and
improbabilities against the complainant.
11. In the present case, the specific case
of the accused is that the father-in-law of the
complainant had advanced Rs.4 lakhs to the husband of
the accused for the construction of Ushus English
Medium School. Later, when the father-in-law of the
complainant and the husband of the accused died, the
brother-in-law of the complainant by name Mufeed
Rahman came to her house and quarrelled with her. At
that time, she was forced to issue signed blank
cheques and one among the cheques has been misused in
this case. It is true that a suggestion in the very
same lines has been made to PW1 during cross-
examination. But PW1 has stoutly denied the said
suggestion. Apart from the said suggestion, nothing
has been brought out in the cross-examination which
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would probabilise the said version. At this juncture,
I will also take note of the fact that the accused
had no such case initially while issuing Ext.P6 reply
notice to the complainant. On the other hand, the
stand taken in the reply notice is one of total
denial and it was also stated that the complainant
has without any authority, misused the cheques.
12. Be that as it may, it is further to be
seen that the version thus taken by the accused is
very vague, sans details. The accused has not even
stated the date, month or year in which the said
Mufeed Rahman has forcefully taken the cheques from
her. She also does not say as to how many cheques she
has thus given to the said Mufeed Rahman. Most
importantly, it is to be seen that even though such a
serious contention has been taken, the accused has,
till date, not taken any steps against the said
Mufeed Rahman or the complainant for misusing her
cheques. The said conduct of the accused does not
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stand the test of a prudent man’s mind set and cannot
find support from the court.
13. Coming to the contention of the learned
counsel for the revision petitioner regarding the
source to advance the money, I find no merit in it.
In the decision of the Apex Court in Rohitbhai
Jivanlal Patel v. State of Gujarat & Another (AIR
2019 SC 1876), the Apex Court has categorically held
that once a presumption under Sections 118 and 139 of
the NI Act are drawn, the factors relating to want of
documentary evidence in the form of receipts or
accounts or want of evidence as regards the source of
funds are not at all relevant consideration while
examining, if the accused has been able to rebut the
presumption or not. It is only in cases where the
accused discharges the onus placed upon him by
bringing on record such facts and circumstances as to
show the preponderance of probabilities tilting in
his favour, any doubt on the complainant’s case could
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have been raised for want of evidence regarding the
source of funds for advancing the loan to the
accused. In the present case, as stated earlier, the
version, as projected by the accused, regarding the
cheque coming into the possession of the complainant
is not believable and probable and if so, there is no
burden upon the complainant to prove the source to
advance, the money. Now even if it is assumed to be
otherwise so, it can be seen that the evidence of PW1
clearly shows that she has raised Rs.10 lakhs from
her father-in-law and father, and also by selling her
gold ornaments. Even though, PW1 has been cross-
examined in extenso, nothing has been brought out to
disbelieve her on these aspects. At this juncture, it
is also to be kept in mind that the father-in-law
and father of PW1 were not alive at the time of
taking evidence.
14. As far as the contention raised by the
revision petitioner by relying on Hari P.C’s case
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(cited supra) is concerned, I am of the view that the
said dictum is not applicable to the facts of the
present case. In the said decision, it is
specifically stated that the same is applicable only
prospectively and the dictum will be applicable in a
concluded case only if such a point is specifically
raised and there is no explanation for the
complainant in tune with Section 273B of the Income
Tax Act. On a perusal of the entire records including
the evidence adduced, I have no hesitation to find
that no such contention has been raised by the
accused at any point of time and no explanation is
sought for from the complainant/PW1 during cross-
examination. In such circumstances, I find that the
afore contention of the revision petitioner has no
legs to stand.
In the light of the afore discussions, I find
that both the trial court and appellate court have
properly appreciated the evidence on record and has
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arrived at a correct conclusion of guilt against the
accused. Therefore, the challenge raised on merit
fails. Now coming to sentence, considering the facts
and circumstances of this case, I am of the view that
the sentence imposed by the appellate court cannot be
considered as unjust or excessive. Ergo, I find no
merit in this criminal revision petition and the same
is accordingly dismissed.
Sd/-
P. V. BALAKRISHNAN
JUDGE
scl.