Kerala High Court
N.I.Sreedharan vs State Of Kerala on 16 July, 2025
2025:KER:52434
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 16TH DAY OF JULY 2025/25TH ASHADHA, 1947
CRL.A NO. 2686 OF 2008
AGAINST THE ORDER/JUDGMENT DATED 13.11.2008 IN
Crl.L.P. NO.1715 OF 2008 OF HIGH COURT OF KERALA
ARISING OUT OF THE ORDER/JUDGMENT DATED 16.07.2008 IN
ST NO.2548 OF 2006 OF JUDICIAL MAGISTRATE OF FIRST
CLASS ,KOTTAYAM
APPELLANT:
N.I.SREEDHARAN, KOTHALA P.O.,
KOOROPPADA VILLAGE,, KOTTAYAM TALUK.
BY ADVS.
SHRI.M.V.THAMBAN
SRI.B.BIPIN
SRI.R.REJI
SMT.THARA THAMBAN
RESPONDENT/STATE:
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 M.N. GOPALAKRISHNAN NAIR,
S/O. NARAYANAN NAIR, MALIACKAL HOUSE,
VAZHOOR EAST P.O., VAZHOOR.
BY ADV SHRI.C.S.MANILAL
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 15.07.2025, THE COURT ON 16.07.2025 DELIVERED THE
FOLLOWING:
Crl.A.2686 OF 2008 :2: 2025:KER:52434
JUDGMENT
This appeal has been preferred by the complainant in S.T. No.2548/2006 on the file of the Judicial First Class Magistrate Court-I, Kottayam, challenging the judgment of acquittal rendered in the said case, dated 16.07.2008, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I. Act"). For the sake of clarity and convenience, the parties in this appeal are referred to hereafter as the complainant and the accused.
2. The case of the complainant in brief is as follows;
Towards the discharge of a legally enforceable debt of Rs.50,000/-, the accused issued a cheque in favour of the complainant drawn on the account maintained by the accused with Vazhoor Farmers' Service Co-operative Bank Ltd. for the said amount. When the complainant sent the said cheque for collection through his account maintained at Service Co-operative Bank Ltd. Koorappada branch, the same was returned dishonored, stating the reason 'not arranged for'. Thereafter, the complainant issued a notice to the accused intimating the dishonor of the cheque and demanding the payment of the Crl.A.2686 OF 2008 :3: 2025:KER:52434 cheque amount. Though the said notice was duly served, the accused neither made the payment nor issued any reply. Hence, the accused is alleged to have committed an offence punishable under Section 138 of N.I. Act.
3. Before the trial court, the complainant was examined as PW1 and Exts. P1 to P7 were marked. On the side of the defence, the accused got himself examined as DW1 and marked Ext.D1.
4. After consideration of the oral and documentary evidence on record and after hearing both sides, the trial court by judgment dated 16.07.2008, found the accused not guilty of the offence punishable under Section 138 of N.I. Act, and accordingly acquitted him. Aggrieved by the said finding and order of acquittal, the complainant has preferred the present appeal.
5. I heard the learned counsel appearing for the appellant and the learned counsel for the respondent.
6. The learned counsel for the appellant would submit that the trial court acquitted the accused in a hasty and unjustified manner without properly appreciating the facts and Crl.A.2686 OF 2008 :4: 2025:KER:52434 evidence brought on record. According to the counsel, as the execution of Ext.P1 cheque was duly proved, the trial court ought to have found that the complainant had succeeded in establishing the basic facts to draw a presumption under Section 139 of the N.I. Act. The learned counsel urged that since the accused miserably failed to rebut the said statutory presumption, he is liable to be found guilty and convicted. In response, the learned counsel for the respondent/accused submitted that the complainant miserably failed to prove his case. According to the counsel, the complainant failed to discharge his initial burden to prove the transaction and execution of the cheque, and hence the presumptions under Sections 118 and 139 of the N.I. Act cannot be invoked in his favour. According to the learned counsel, the trial court correctly appreciated the facts and evidence brought on record and rightly acquitted the accused.
7. Before delving into a discussion regarding the scope of interference in the present appeal, it is pertinent to note that the legal yardsticks applicable to an appeal against acquittal are different from those applicable to an appeal against conviction. Ordinarily, an appellate court would not interfere with a judgment Crl.A.2686 OF 2008 :5: 2025:KER:52434 of acquittal unless it is demonstrated that the trial court's view is perverse, manifestly illegal, or grossly unjust, and that the only possible conclusion on the basis of the evidence on record was that the accused was guilty of the offence alleged. If two views are possible on the basis of the evidence, and the trial court has taken one such view leading to acquittal, the appellate court would generally refrain from substituting its own view merely because it might have arrived at a different conclusion. However, that does not mean that the appellate court cannot reverse an erroneous acquittal. More specifically, when the appreciation of evidence by the trial court is patently erroneous or perverse or runs contrary to the settled principles of law, and when the evidence on record clearly establishes the guilt of the accused, leaving no room for any other plausible conclusion, the appellate court is well within its power to reverse the finding of acquittal and convict the accused.
8. Now, while reverting to the case at hand, it can be seen that in order to prove his case, the complainant got himself examined as PW1. He filed an affidavit in lieu of chief examination and reiterated the allegations set forth in the Crl.A.2686 OF 2008 :6: 2025:KER:52434 complaint. However, during cross-examination, when a definite question was put to him as to whether he attended the marriage of the accused's daughter, he replied that he did not participate as he was not on good terms with the accused at that time. Moreover, he added that "പിണക്കത്തിലായ ശേഷം ഞങ്ങൾ തമ്മിൽ കൊടുക്കൽ വാങ്ങലുകളോ ചെക്ക് കൈമാറലോ ഉണ്ടായിട്ടില്ല." [After the discord between us, there was no give and take transaction, or there was no handing over of any cheque]. Likewise, in response to another question, PW1 replied that he is not remembering whether the marriage of the accused's daughter was conducted on 28.05.2006. He further stated that he was not invited to the betrothal and reiterated that he was not on good terms with the accused prior to that. At this juncture, it is pertinent to note that when the accused was examined was DW1, the certified copy of the marriage certificate of his daughter was marked as Ext.D1. A perusal of Ext.D1 reveals that the marriage of the accused's daughter was conducted on 28.05.2006. As already stated, the case of the complainant is that no money transaction or handing over of any cheque occurred after he fell out of good terms with the accused. However, in the affidavit filed in lieu of the chief Crl.A.2686 OF 2008 :7: 2025:KER:52434 examination, what he stated is that the cheque in question was issued by the accused on 15.07.2006, which is about one and a half months after the marriage of the accused's daughter. This assertion directly contradicts PW1's earlier version that there was no money transaction or handing over of a cheque after he fell out of good terms with the accused. In the light of the above inconsistency, I have no hesitation in holding that the complainant failed to prove his initial burden regarding the transaction and execution of the cheque. In such cases, the presumptions under Sections 118 and 139 of the N.I. Act would not apply. Therefore, I find no reason to interfere with the judgment of acquittal passed by the trial court. In the result, the appeal stands dismissed.
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd