Kerala High Court
Arthar vs Lala Mohanraj & Anr on 23 July, 2025
2025:KER:54650
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
CRL.A NO. 2281 OF 2007
ORDER/JUDGMENT DATED 22.10.2007 IN Crl.L.P.
NO.1090 OF 2007 OF HIGH COURT OF KERALA ARISING OUT OF
THE ORDER/JUDGMENT DATED 13.12.2002 IN CC NO.709 OF
1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-III,NEYYATTINKARA
APPELLANT/COMPLAINANT:
ARTHAR, KATTAKUZHYYVILA ROADARIKATHU VEEDU,
KUNNATHUKAL DESOM,KUNNATHUKAL VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SRI.SUMAN CHAKRAVARTHY
RESPONDENT/ACCUSED AND STATE:
1 LALA MOHANRAJ, S/O. PONNUSWAMY, HOUSE NO.28,
VEDATHA ST.VADASSERRI, NAGARCOIL, KK DISTRICT
NOW RESIDING AT THAYAGAM LANE, NEW HOUSE NO.777
(OLD 171/1) OPPOSITE SUB JAIL, NAGARCOIL-1
2 STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR-R1
SHRI.K.JOHN MATHAI-R1
SRI.JOSON MANAVALAN-R1
SHRI.PAULOSE C. ABRAHAM-R1
SHRI.CHETHAN KRISHNA R.-R1
CRL.A NO. 2281/2007 :2: 2025:KER:54650
SHRI.ALEX M THOMBRA SERNIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 18.07.2025, THE COURT ON 23.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been preferred by the complainant in C.C.No.709 of 1997 on the file of the Judicial First Class Magistrate Court-III, Neyyattinkara, challenging the judgment of acquittal rendered in the said case, dated 13.12.2002, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I. Act"). For the sake of convenience and clarity, the parties in this appeal are hereinafter referred to as the complainant and the accused.
2. The case of the complainant in brief is as follows; The accused, in discharge of a liability of Rs.3,00,000/-, issued a cheque dated 03.04.1997 drawn on Federal Bank Ltd. Nagarcoil branch, in favour of the complainant. However, when the complainant sent the said cheque for collection through his account maintained at Federal Bank Ltd., Nagarcoil 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. However, the accused refused to receive the said notice and did not pay any amount. Thus, the CRL.A NO. 2281/2007 :4: 2025:KER:54650 accused is alleged to have committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (for short "N.I. Act").
3. Before the trial court, the complainant got himself examined as PW1 AND marked Exts. P1 to P6. Another witness was examined from the side of the complainant as PW2. On the side of the defence three witnesses were examined as DW1 to DW3 and two documents were marked as exhibits D1 and D2. Among the defence witnesses, DW3 is none other than the accused himself. After considering the oral and documentary evidence on record, and hearing both sides, the trial court found the accused not guilty of the offence punishable under Section 138 of N.I. Act, and accordingly acquitted him. Assailing the said finding and the order of acquittal, the complainant has preferred this appeal.
4. I heard the learned counsel appearing for both sides.
5. 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. 2281/2007 :5: 2025:KER:54650 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.
6. 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 NO. 2281/2007 :6: 2025:KER:54650 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.
7. As already stated, the definite case of the complainant is that the accused owed him an amount of Rs.3,00,000/-, and towards the discharge of the said liability, the accused issued a cheque in favour of him for the said amount. However, when the CRL.A NO. 2281/2007 :7: 2025:KER:54650 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. During the chief examination, PW1 reiterated the allegations set forth in the complaint. Notably, as in the complaint during chief examination also, PW1, did not state any specific details of the transaction, such as the date on which the amount was borrowed, the date of issuance of the cheque, place of transaction, etc. I am not oblivious that there is no legal requirement mandating the complainant to disclose the entire details of the transaction either in the complaint or during chief examination. The non-disclosure of such details is not by itself, a ground for acquittal.
8. In the case at hand, during chief examination, what PW1 stated is that the accused issued a cheque towards the discharge of a liability of Rs.3,00,000/- and that it was the accused who had signed the cheque. Significantly, PW1 does not claim that the accused signed the cheque in his presence. Anyhow, from the version put forward by the defence it is discernible that the accused has admitted the signature in Ext.P1 to be his.
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Therefore, the admission of signature in Ext.P1 substantiates and supports the complainant's case regarding the execution of the cheque. Once the execution of the cheque is proved, the presumption under Section 139 of the N.I. Act will come into operation in favour of the complainant. Likewise, when the complainant succeeds in establishing the basis for drawing a presumption under Section 139 of N.I. Act in his favour, the burden shifts to the accused to rebut the said presumption.
9. While considering whether the accused had succeeded in rebutting a presumption under Section 139 of N.I. Act, it is to be borne in mind 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 improbabilities in the case of the complainant to displace the presumption. In the present case, the accused has raised a definite defence that he neither had any acquaintance with the complainant nor had any monetary transaction with the complainant. Instead, his case is that in the year 1996, he borrowed some amount from one Anil Kumar, who was running a private bank in the name and style "Narikkallil Bankers" at CRL.A NO. 2281/2007 :9: 2025:KER:54650 Karakonam. The said Anil Kumar was introduced to the accused by one Sreekumar. However, the accused failed to repay the said amount to Anil Kumar. Consequently, he issued five cheques to the said Anil Kumar, each for Rs.3,00,000/-. Even thereafter, he failed to raise the amount covered by the cheque, and he was constrained to dispose of his 20 acres of rubber estate. As per the direction of Anil Kumar, the sale deeds were executed in favour of Anil Kumar and three others named Krishnan Nair, Shibu, and Pushpa Kumari. Even after the execution of the sale deeds in favour of the above-said persons, Anil Kumar did not return the cheque.
10. In order to substantiate his version, the accused examined Sreekumar as DW2. On examination before court, DW2 stated that he and the accused were working in different branches of the same bank. He knew the complainant in this case as the latter maintained an account in his branch. The complainant was introduced to the bank by one Anil Kumar, who was running a private bank named "Narikkalil Bankers". DW2 further deposed that he had personal acquaintance with Anil Kumar and the accused had borrowed an amount of CRL.A NO. 2281/2007 :10: 2025:KER:54650 Rs.6,00,000/- from Anil kumar and the accused issued five cheque leaves as security. DW2 stood as a middleman in the said transaction. The said cheque leaves were issued in the names of five persons as directed by Anil Kumar. The agreed rate of interest was 60%. As the accused failed to repay the loan, the accused was constrained to execute sale deeds with respect to 20 acres of property in the name of Anil Kumar, his wife Sheeba, his father Krishnan Nair, and his mother-in-law Pushpa Kumari. However, even after the execution of the sale deeds, Anil Kumar did not return the cheque leaves. Consequently, the accused issued legal notice and proceeded to cancel the sale deeds.
11. While analysing the defence version of the incident, it is significant to note that during cross-examination, PW1, the complainant, admitted that he had no acquaintance with the accused prior to this transaction. He further admitted that the accused was introduced to him by one Sreekumar(DW2). PW1 also stated that he did not remember the date on which the money was lent or when the cheque was issued. However, he stated that the cheque was issued on the same day the money CRL.A NO. 2281/2007 :11: 2025:KER:54650 was lent. More pertinently, during the cross-examination, PW1 stated that he had given the amount to Sreekumar, who in turn had given it to the accused. He further admitted that the cheque was also handed over to him by Sreekumar.
12. At this juncture, it is important to note that during cross-examination, PW1 admitted that the accused was a stranger to him. Furthermore, when questions were put to PW1 regarding the source of the amount which he allegedly lent to the accused, PW1 stated that he had obtained Rs.2,00,000/- from his brother, who is serving in the Military. He further claimed that Rs.15,000/- was borrowed from one Sasidharan Nair. Rs.30,000/- was from his personal savings, and the remaining amount was raised by pledging his gold ornaments with two private financiers. Ofcourse, the above version of PW1 regarding the manner in which he raised the funds to lend to the accused, who is a complete stranger, raises serious doubts in the mind of this court. It is difficult to accept, in the ordinary course of human conduct, that a person would go to such lengths, borrowing from multiple persons and pledging gold, to lend money to someone with whom he had no prior acquaintance.
CRL.A NO. 2281/2007 :12: 2025:KER:54650
Therefore, I am of the view that the defence put forward by the accused cannot be brushed aside. Moreover, the evidence of DW2 shows that no amount was even given by the complainant to the accused. According to him, the transaction was between one Anil Kumar and the accused, and DW2 acted as a middleman in the said transaction. DW2 further stated that it was at the direction of the said Anil Kumar, the accused, issued five cheques in favour of five different persons, including the complainant in this case. The version of events as narrated by DW2 cannot be disbelieved, especially in the light of the admissions made by the complainant during cross-examination, which I have already discussed.
13. As already noted, this appeal has been filed against an order of acquittal. An interference in such an order cannot be done in a casual manner. As there is already an order of acquittal, a prima facie presumption of innocence is available in favour of the accused. Interference with an order of acquittal was warranted only when it is shown that the view taken by the trial court is perverse, illegal, or grossly unjust. In the present case, the view taken by the trial court cannot be said to be CRL.A NO. 2281/2007 :13: 2025:KER:54650 perverse or unreasonable. In that context, I am of the view that no interference is warranted in the impugned order of acquittal.
In the result, the appeal stands dismissed.
Sd/-
JOBIN SEBASTIAN
JUDGE
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