JOHN K. ABRAHAM versus SIMON C. ABRAHAM & ANOTHER

Citation: [2013] 12 S.C.R. 753 · Decided: 05-12-2013 · Supreme Court of India · Bench: S.S. NIJJAR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2013] 12 S.C.R. 753 
JOHN K. ABRAHAM 
v. 
SIMON C. ABRAHAM & ANOTHER 
(Criminal Appeal No. 2043 of 2013) 
DECEMBER 05, 2013 
[SURINDER SINGH NIJJAR AND FAKKIR MOHAMED 
IBRAHIM KALIFULLA, JJ.] 
Negotiable Instruments Act, 1881 - s.138 - Dishonour 
A 
B 
of cheque - Trial acquitted accused-appellant - Reversal of C 
acquittal by High Court - Justification - Held: Not justified -
In order to draw presumption u/s. 118 rlw s. 139, the burden was 
heavily upon the respondent-complainant to have shown that 
he had the required funds for having advanced money to the 
appellant; that issuance of cheque in support of the payment 
D 
advanced was true and that the appellant was bound to make 
the payment as had been agreed while issuing the cheque 
in favour of the respondent - Respondent, however, was not 
even aware of the date when substantial amount of 
Rs.1,50,0001- was advanced by him to the appellant; he was 
E 
not sure as to who wrote the cheque; he was not even aware 
when exactly and where exactly the transaction took place for 
which the cheque came to be issued by the appellant -
Moreover, the respondent took diametrically opposite stands 
- Various defects in the evidence of respondent, as noted by F 
the trial Court were simply brushed aside by the High Court 
without assigning any valid reason - Serious lacuna in the 
evidence of respondent which strikes at the root of the 
complaint uls.138 - This factor not examined by the High 
Court while reversing the judgment of trial Court - Conviction 
G 
of appellant accordingly set aside. 
The respondent no.1 filed complaint under Section 
138 of the Negotiable Instruments Act, 1881, alleging that 
the appellant had borrowed a sum of Rs.1,50,000/- from 
753 
H 
754 
SUPREME COURT REPORTS 
[2013] 12 S.C.R. 
A him and had issued a cheque for the said sum in 
discharge of the debt and that when the cheque was 
presented for encashment, the same was dishonoured. 
In the questioning of the appellant made under Section 
313 Cr.P.C., the appellant took the stand that his son took 
B the cheque from him and that if at all anything was to be 
recovered, it had to be made from the son of the appellant, 
since the appellant had not borrowed any money. 
The trial court held that the respondent-complainant 
C was making a prevaricating statement as regards the 
issuance of the cheque, that he was not even aware of 
the date when the amount was said to have been 
borrowed by the appellant, that there was material 
alteration in the instrument and, therefore, the respondent 
failed to establish a case under Section 138 of the 
D Negotiable Instruments Act. Consequently, the trial court 
found the appellant not guilty and acquitted him under 
Section 255(1) of Cr.P.C. The High Court reversed the 
judgment of the trial court, and while convicting the 
appellant, imposed the sentence to pay a fine of 
E Rs.1,50,000/- as compensation under Section 357(1) of 
Cr.P.C, and therefore the present appeal. 
Allowing the appeal, the Court 
HELD: 1. The High Court committed a serious 
F illegality in reversing the judgment of the trial court. While 
reversing the judgment of the trial Court, what weighed 
with the High Court was that in the 313 questioning, it was 
not the case of the appellant that a blank signed cheque 
was handed over to his son and that even in the cross-
G examination it was not suggested to PW-1 (respondent) 
that a blank cheque was issued. The High Court was also 
persuaded by the fact that the appellant failed to send 
any reply to the lawyer's notice, issued by the 
respondent. Based on the above conclusions, the High 
H Court held that the presumption under Sections 118 and 
JOHN K. ABRAHAM v. SIMON C. ABRAHAM 
755 
139 of the Negotiable Instruments Act could be easily 
A 
drawn and that the appellant failed to rebut the said 
presumption. On that single factor, the High Court 
reversed the judgment of the trial Judge and convicted 
the appellant. In order to draw the presumption under 
Section 118 read along with 139 of the Negotiable 
B 
Instruments Act, the burden was heavily upon the 
complainant to have shown that he had required funds 
for having advanced the money to the accused; that the 
issuance of the cheque in support of the said payment 
advanced was true and that the accused was bound to c 
make the payment as had been agreed while issuing the 
cheque in favour of the complainant. In the instant case, 
however, the respondent was not even aware of the dat

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