Kerala High Court
Seby John vs K.K.Shiju on 6 August, 2025
Crl. Appeal No.268 of 2014 1
2025:KER:58631
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
CRL.A NO. 268 OF 2014
AGAINST THE JUDGMENT OF ACQUITTAL DATED 09.01.2014 IN CC
NO.98 OF 2011 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
(E&O),ERNAKULAM.
ORDER DATED 17-03-2014 IN CRL.L.P NO.47 OF 2014 OF HIGH COURT
OF KERALA.
APPELLANT/COMPLAINANT:
SEBY JOHN, AGED 60 YEARS, S/O.P.D.JOHN,
PUTHOOR HOUSE, 44/184, VATTOLY LANE,
SRMN ROAD, ERNAKULAM-682 018.
BY ADVS.ANILKUMAR C.R.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/ACCUSED/STATE:
1 K.K.SHIJU, AGED 35 YEARS,
S/O.KRISHNAN, KOLLARA HOUSE, KOLLAMKODIMUGAL,
KAKKANAD, COCHIN-682 031.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADVS.SHRI.C.ANILKUMAR (KALLESSERIL)
SRI.C.Y.VINOD KUMAR
R2 BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.08.2025, THE COURT ON 06.08.2025 DELIVERED THE
FOLLOWING:
JOHNSON JOHN, J.
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Crl. Appeal No.268 of 2014
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Dated this the 6th day of August, 2025.
J U D G M E N T
In this appeal, the complainant before the trial court is challenging the acquittal of the accused under Section 138 of the Negotiable Instruments Act (for short 'N.I Act') as per the impugned judgment.
2. As per the complaint, the accused borrowed Rs.1,20,000/- for the purpose of his real estate business from the complainant and subsequently towards discharge of the liability, the accused issued a cheque dated 19-07-2010 for Rs.1,20,000/- to the complainant. When the Crl. Appeal No.268 of 2014 -: 2 :- 2025:KER:58631 complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of statutory notice, the accused failed to pay the cheque amount to the complainant.
3. From the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked and from the side of the accused Ext.D1 marked. After considering the oral and documentary evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act against the accused and hence the accused was acquitted.
4. Heard Sri.Anil Kumar.C.R, the learned Crl. Appeal No.268 of 2014 -: 3 :- 2025:KER:58631 counsel for the appellant, Sri.C.Y.Vinod kumar, the learned counsel for the first respondent/accused and Sri.Alex M.Thombra, the learned Senior Public Prosecutor for the second respondent.
5. The learned counsel for the appellant argued that the accused has not disputed the signature in Ext.P1 cheque and that the trial court ought to have found that the complainant is entitled for the benefit of the presumptions under Sections 139 and 118 of the N.I Act. But the learned counsel for the accused/first respondent argued that the complainant has not disclosed the alleged date of execution and issuance of the cheque in the complaint or in the Crl. Appeal No.268 of 2014 -: 4 :- 2025:KER:58631 statutory notice. Further, when the complainant was examined as PW1, he failed to disclose the date of execution and issuance of the cheque in the chief affidavit and only in cross examination it is stated that he received the cheque one month before the date of the cheque and that he paid Rs.1,20,000/- to the accused two months prior to the date of the cheque. PW1 categorically admitted in cross examination that at the time of receiving the cheque, there was no transaction between himself and the accused other than the transaction relating to Rs.1,20,000/-. However, PW1 admitted his signature in Ext.D1 receipt dated 18-10-2010 and admitted that as per Ext.D1 he received Rs.15,000/- from the accused. Crl. Appeal No.268 of 2014 -: 5 :-
2025:KER:58631
6. In another part of the cross examination, PW1 stated that the accused brought a typed post dated cheque to his office and signed the same before him. PW1 denied the suggestion of the defence that he obtained a blank cheque from the accused when the accused borrowed Rs.50,000/- and that Ext.D1 is the receipt issued while receiving part payment.
7. It is pertinent to note that Ext.P1 cheque is dated 19-07-2010 and Ext.D1 is dated 18-10-2010. PW1 categorically admitted in cross examination that he issued Ext.D1 while receiving Rs.15,000/- from the accused. PW1 has not stated in chief examination or cross examination that there was any other transaction between them at Crl. Appeal No.268 of 2014 -: 6 :- 2025:KER:58631 the time of receiving the cheque. In re- examination, PW1 stated that he received the amount as per Ext.D1 for sale of thread rubber to the accused. But PW1 admitted that the said fact is not stated in Ext.D1.
8. It is pertinent to note that the statement of PW1 in re-examination that he sold thread rubber to the accused is contrary to his admission in cross examination that there was no transaction other than the money transaction relating to the cheque.
9. In M.S.Narayana Menon v. State of Kerala (2006(6) SCC 39), the Hon'ble Supreme Court considered the nature of the standard of proof for rebutting the presumption under Section 139 Crl. Appeal No.268 of 2014 -: 7 :- 2025:KER:58631 of the N.I Act 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.
10. In Basalingappa v. Mudibasappa (2019 (5) SCC 418), the Hon'ble Supreme Court summarised the principles of law governing the presumptions under Sections 118 and 139 of the N.I Act in the following manner :
"(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the Crl. Appeal No.268 of 2014 -: 8 :- 2025:KER:58631 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, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come inthe witness box to support his defence."
11. 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 the N.I Act is preponderance of probabilities and that the accused is not Crl. Appeal No.268 of 2014 -: 9 :- 2025:KER:58631 required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption can be inferred from the materials on record and circumstantial evidence.
12. In Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel [(2023) 1 SCC 578], it was held by the Honourable Supreme Court that when a part payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the NI Act and the cheque cannot be presented for encashment without recording the part payment. It was further held that if such a cheque was presented for Crl. Appeal No.268 of 2014 -: 10 :- 2025:KER:58631 encashment without recording the part payment and if the same is dishonoured on presentation, the offence under Section 138 of the NI Act would not be attracted, since the cheque does not represent a legally enforceable debt at the time of encashment.
13. As noticed earlier, the complainant has not disclosed the date of execution and issuance of the cheque in the complaint or statutory notice. The evidence of PW1 in cross examination that he receieved the cheque one month prior to the date of Ext.P1 cheque and that the financial transaction was two months prior to the date mentioned in the cheque and that the accused came to his office with a typed post Crl. Appeal No.268 of 2014 -: 11 :- 2025:KER:58631 dated cheque are not at all reliable and in that circumstance, I find no reason to interfere with the finding in the impugned judgment that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act against the accused. Therefore, I find that 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.
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