Kerala High Court
N.Natarajan vs Vasudevan on 18 July, 2025
2025:KER:53264
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
CRL.A NO. 1711 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 22.07.2010 IN
Crl.L.P. NO.760 OF 2010 OF THIS COURT ARISING OUT OF
THE ORDER/JUDGMENT DATED 28.05.2010 IN Crl.A NO.347 OF
2009 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, MANJERI
APPELLANT/PETITIONER/COMPLAINANT
N.NATARAJAN
DALIYA, THRIPPANACHI.P.O., KUZHIMANNA,
MALAPPURAM DISTRICT.
BY ADV SRI.K.SHIBILI NAHA
RESPONDENTS/RESPONDENTS/ACCUSED & STATE:
1 VASUDEVAN
PATHAKKARA HOUSE, KOVILAKAM KUNDU, MANJERI.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.P.SAMSUDIN
SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
17.07.2025, THE COURT ON 17.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been preferred by the complainant in C.C.No.205/2008 on the file of the Chief Judicial Magistrate, Manjeri. After the trial of the said case, the learned Magistrate found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I. Act"), and he was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,50,000/-. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months.
2. However, subsequently, the accused preferred an appeal. The learned Additional Sessions Judge (Adhoc) Fast Track-II, Manjeri, vide judgment dated 28.05.2010 in Criminal Appeal No.347/2009, set aside the judgment passed by the learned Magistrate and acquitted the accused. Challenging the said judgment of acquittal rendered in the above-said case, the complainant approached this Court with the present appeal. For the sake of convenience and clarity, the parties in this appeal are hereinafter referred to as the complainant and the accused.
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3. The case of the complainant in brief is as follows;
The complainant is a teacher, and both the complainant and the accused were acquainted with each other. On 06.06.2007, the accused borrowed an amount of Rs. 1,50,000/- from the complainant, promising to repay the same within a period of two weeks. However, the accused failed to repay the said amount within the promised time. After repeated demands, on 03.04.2008, the accused came to the house of the complainant and issued a cheque dated 03.04.2008 for an amount of Rs. 1,50,000/-drawn on the account maintained by him with State Bank of Travancore, Manjeri branch, in favour of the complainant. However, when the complainant sent the said cheque for collection through his account maintained at South Malabar Gramin Bank, Trippanachi branch, the same was returned unpaid, stating the reason 'funds insufficient'. Thereafter, the complainant issued a notice to the accused intimating the dishonour of the cheque and demanding the payment of the cheque amount. Although the said notice was duly served on the accused, he neither made the payment nor issued any reply. Thus, the accused is alleged to have committed CRL.A NO. 1711/2010 :4: 2025:KER:53264 an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (for short "N.I. Act").
4. Before the trial court, the complainant got himself examined as PW1 and marked Exts. P1 to P4. After consideration of the oral and documentary evidence on record, and hearing both sides, the trial court found the accused guilty of the offence punishable under Section 138 of N.I. Act, and accordingly convicted him. Assailing the said judgment, the accused approached the Sessions Court, Manjeri, in appeal. The learned Additional Sessions Judge, Manjeri, vide judgment dated 28.05.2010 in Criminal Appeal No.347/2009, allowed the appeal and found the accused not guilty of the offence under Section 138 of N.I. Act, and he was acquitted. Assailing the said finding and the order of acquittal, the complainant has preferred this appeal.
5. I heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor.
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 NO. 1711/2010 :5: 2025:KER:53264 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 1st appellate 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.
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Ordinarily, an appellate court would not interfere with a judgment 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. As already stated, the definite case of the complainant is that on 06.06.2007, the accused approached the complainant at his residence and borrowed an amount of Rs.1,50,000/-.
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According to the complainant, after repeated demands for repayment, the accused, in discharge of the said liability, issued a cheque on 03.04.2008. However, when the said cheque was sent for collection, it was dishonoured due to insufficiency of funds in the account of the accused. In order to prove his case, the complainant got himself examined as PW1. He filed an affidavit in lieu of chief examination wherein he reiterated the allegations set forth in the complaint. In the affidavit, PW1 asserted that it was on 03.04.2008, Ext.P1 cheque was issued. PW1 further stated that it was in his presence, the accused wrote his name in the cheque and signed it, and handed over it to him. A plain reading of the evidence adduced in this case will show that the complainant had succeeded in establishing the basis for drawing a presumption under Section 139 of N.I.Act.
9. The crucial question that now arises for consideration is whether the accused had succeeded in rebutting the said presumption. While considering the said question, it is to be noted that there is no legal requirement for the accused to adduce independent evidence to rebut the said presumption. On the other hand, the accused can even rely upon the CRL.A NO. 1711/2010 :8: 2025:KER:53264 improbabilities in the case of the complainant to displace the presumption. In the present case, the accused has a definite contention that he had no monetary transaction with the complainant as alleged in the complaint. Instead, he claimed that on an earlier occasion, he borrowed an amount of Rs. 20,000/- from the complainant and at that time he had handed over six signed blank cheque leaves to the complainant without entering any amount. Thereafter, he repaid Rs.40,000/- to the complainant by instalments. But he failed to effect the monthly remaining instalments timely. Hence, on 14.09.2006, he executed a power of attorney in favour of the complainant with respect to his 10 cents of property. In the meantime, the complainant presented one of the cheques at the bank. Thereafter, the complainant said that the said cheque had been dishonoured and demanded payment of Rs.10,000/- in cash, agreeing to return the other cheque leaves and the power of attorney. Though the accused paid the said amount, the complainant did not return the other cheque leaves and the power of attorney. Instead, the complainant insisted to register the accused's property in the complainant's name. As the CRL.A NO. 1711/2010 :9: 2025:KER:53264 accused was not ready to heed the said demand, the present case has been foisted against him.
10. It is true that, though a defence as stated above was canvassed from the side of the accused, he did not opt to enter the witness box to substantiate his case. Likewise, no documentary evidence was also produced to establish the alleged repayment, execution of power of attorney, etc. However, during cross-examination, PW1 admitted that the accused had executed a power of attorney in his favour. He also stated that the said power of attorney was given within two months from the date on which he had lent money to the accused. Moreover, he added that it was on 15.09.2006, the power of attorney was prepared. Furthermore, in the cross-examination, PW1 stated that as the accused did not repay the cheque amount, he lodged a complaint before the Manager of the State Bank of Travancore, Manjeri branch. He further admitted that the accused issued six cheque leaves after signing them, and Ext.P1 is one of the said six cheque leaves issued by the accused. PW1 stated that the amount in Ext.P1 cheque was written by the accused in his handwriting.
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11. During cross-examination, PW1 further stated that when the accused failed to repay the amount, he lodged a complaint before the Police, and the Sub-Inspector of Police summoned the accused and directed him to pay the amount on or before 10.04.2008. Accordingly, on 03.04.2008, the accused came to his house, entered the amount in one of the cheque leaves already handed over, and gave the completed cheque to him. Likewise, in the cross-examination, he reiterated that പ്രതി എനിക്ക് ആറ് ചെക്ക് ലീവ്സ് ഒപ്പിട്ടു തന്നിരുന്നു (the accused had given me six signed cheque leaves).
12. However, this version of events directly contradicts the statement made in his affidavit, filed in lieu of chief examination, wherein PW1 claimed that on 03.04.2008, the accused came to his house and issued Ext.P1 cheque after signing it in his presence. These two versions are mutually contradictory and cannot stand together. If PW1's version in the cross-examination that the accused had already handed over six signed blank cheque leaves is accepted, it becomes highly improbable that the accused could have signed the cheque again in PW1's presence on 03.04.2008 as claimed in his affidavit.
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13. Notably, during cross-examination, PW1 further admitted that the amount involved in the present case was allegedly given to the accused within two months of the execution of the power of attorney. Likewise, PW1 admitted that the power of attorney was prepared on 15.09.2006. At this juncture, it is pertinent to note that the definite case of the complainant is that the money was lent on 06.06.2007, well beyond a two-month period from the execution of the power of attorney. Therefore, it is demonstrably clear that the testimony of PW1 that the amount in the present case was allegedly given within two months of the execution of the power of attorney is nothing but false.
14. In short, I have no hesitation in holding that the case canvassed by the accused is more probable than that of the complainant's case. The complainant does not have a consistent case regarding the execution of the cheque. It is well settled that the presumption under Section 139 of the N.I. Act may get displaced by the prosecution record itself, or the accused may choose to lead independent evidence in rebuttal thereof. The presumption can be rebutted either by leading direct evidence or CRL.A NO. 1711/2010 :12: 2025:KER:53264 by relying upon the inherent improbabilities or inconsistencies in the complainant's case itself. I am of the considered view that the inconsistencies in the evidence of PW1 itself will make his case suspicious. Likewise, the mutually destructive evidence of PW1 regarding the execution of Ext.P1 cheque will certainly help the accused to rebut the presumption. Therefore, I find no reason to interfere with the judgment of acquittal passed in this case.
In the result, the appeal stands dismissed.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS