Kerala High Court
Victor Cletus vs State Of Kerala on 8 July, 2025
2025:KER:49806
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.A(V) NO. 1673 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 30.10.2013 IN CRL.A
NO.503 OF 2010 OF ADDITIONAL DISTRICT COURT- I, KOLLAM
ARISING OUT OF THE ORDER/JUDGMENT DATED IN ST NO.157 OF
2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, KOLLAM
PETITIONER/2ND RESPONDENT/COMPLAINANT:
VICTOR CLETUS, AGED 50 YEARS
VIJO VILASAM, THEKKEMURI,
KIZHAKKE KALLADA, KOLLAM
BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL
RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM. 682 031.
2 NAVAS, AGED 45 YEARS
PUNNAVILAPUTHEN VEEDU (THUNDIL VEEDU),
PALLISSERIKKAL PO, SASTHAMCOTTAH, KOLLAM 691 001
BY ADVS.
SRI.ABDUL JAWAD K.
SRI.MATHEW A KUZHALANADAN
SMT.VINEETHA V.KUMAR
SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN COME
UP FOR HEARING ON 04.07.2025, THE COURT ON 08.07.2025
DELIVERED THE FOLLOWING:
Crl.A.(V).No.1673 OF 2013
:2: 2025:KER:49806
JUDGMENT
This appeal has been preferred by the complainant in S.T.No.157 of 2009 on the file of the Judicial First Class Magistrate Court-IV, Kollam. 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 one month and to pay a fine of Rs.1,00,000/-. However, subsequently, after considering the appeal preferred by the accused, the learned Additional Sessions Judge, Kollam, vide order dated 30.10.2013, 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. The parties in this appeal shall be referred to as the complainant and the accused hereafter.
2. The case of the complainant in brief is as follows;
On 09.08.2006, the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of Crl.A.(V).No.1673 OF 2013 :3: 2025:KER:49806 the said liability, issued a cheque dated 04.01.2007 drawn on the account maintained by him with the State Bank of Travancore, Sasthamcotta branch, in favour of the complainant. When the complainant presented the said cheque for collection on 04.01.2007, through the account maintained by him with the State Bank of Travancore, Kizhakke Kallada branch, the same was returned dishonored, stating the reason 'funds insufficient'. Thereafter, the complainant issued a notice to the accused intimating the factum of dishonor of the cheque and demanding the payment of the 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 marked Exts. P1 to P6. Apart from the complainant, another witness was examined as PW2. From the side of the accused, he was got himself examined as DW1 and marked Exts.D1 to D3.
4. After consideration of the oral and documentary evidence on record, and after hearing both sides, the trial court by judgment Crl.A.(V).No.1673 OF 2013 :4: 2025:KER:49806 dated 28.10.2010, found the accused guilty of the offence punishable under Section 138 of N.I. Act, and he was convicted. Assailing the said judgment, the accused approached the Sessions Court, Kollam, with an appeal, and the learned Additional Sessions Judge, Kollam, vide judgment dated 30.10.2013, allowed the said appeal and found the accused not guilty of an offence punishable under Section 138 of N.I. Act, and he was accordingly acquitted. Assailing the said finding and order of acquittal, the complainant has preferred this appeal.
5. I heard Sri. V.Vinoy Varghese Kallummoottil, the learned counsel appearing for the appellant, Sri.Abdul Jawab K., the learned counsel appearing for the 2nd respondent, and Smt.N.S.Hasna Mol, the learned Public Prosecutor.
6. The learned counsel for the appellant would submit that the first appellate court hastily acquitted the accused without a proper appreciation of the facts and evidence brought on record in this case. It was urged that the trial court had given unnecessary importance to the fact that the complainant had not seen the accused writing the amount in his handwriting on Ext.P1 cheque, despite there being no legal requirement that all the entries in a Crl.A.(V).No.1673 OF 2013 :5: 2025:KER:49806 cheque must be filled by the drawer himself. According to the counsel, as the execution of the cheque stood fully established, the complainant had successfully laid the foundation for drawing a presumption under Section 139 of N.I. Act, and the trial court acquitted the accused without taking note of the fact that the accused miserably failed to discharge the said presumption. The learned counsel further submitted that the finding of the Additional Sessions Judge that the complainant, being an income tax payee, his case that he paid the amount in cash and not through a bank account could not be believed, is a strange one. It is further submitted that the finding of the learned Additional Sessions Judge that there is evidence to show that Ext.P1 was a cheque leaf issued in connection with a chitty transaction is wholly contrary to the evidence on record.
7. Per contra, the learned counsel for the respondent submitted that the complainant had miserably failed to prove the transaction alleged in this case. According to the counsel, Ext.P1 cheque is not supported by any consideration and therefore, its dishonour due to insufficiency of funds does not give rise to a cause of action to initiate a prosecution under Section 138 of N.I. Act. It Crl.A.(V).No.1673 OF 2013 :6: 2025:KER:49806 was further contended that when the complainant was examined as PW1 and a witness from his side was examined as PW2, both of them testified that they did not witness the accused entering the amount in Ext. P1 cheque. This, according to the counsel, clearly establishes that Ext.P1 was a security cheque issued in connection with a chitty transaction, which the accused had with the complainant and later misused by the complainant to file the complaint.
8. Before delving into a detailed discussion regarding the scope of interference in the present appeal, it is pertinent to note that the legal yardsticks applicable to appeals against acquittal and those against conviction are distinct. Generally, the appellate court will not interfere with the finding of an acquittal unless it is found that the only possible conclusion that could have been arrived at based on the evidence on record is that the accused is guilty of the offence charged, and the evidence adduced is incompatible with his innocence. 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 wrong or perverse and runs contrary to the settled principles of law, and the Crl.A.(V).No.1673 OF 2013 :7: 2025:KER:49806 evidence on record clearly establishes the guilt of the accused leaving no other plausible conclusion, the appellate court is well within its powers to reverse the finding of acquittal and convict the accused.
9. 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 made in the complaint. During cross-examination, he asserted that the accused had brought a duly filled-up cheque and had signed it in his presence. When a definite question was put to him as to whether the entries in Ext.P1 cheque were written by the accused, he deposed that he had no acquaintance with the handwriting of the accused. The independent witness examined from the side of the complainant also deposed that he did not see the appellant making entries in Ext.P1 cheque, but he did witness the accused affixing his signature in Ext.P1. At this juncture, it is pertinent to note that the learned Additional Session Court gave undue importance to the evidence of PW1 and PW2 that both of them did not see the appellant writing the amount in Ext.P1 cheque. However, by a series of judicial pronouncements, Crl.A.(V).No.1673 OF 2013 :8: 2025:KER:49806 it is now well settled that there is no legal requirement that the drawer himself must write all the entries in a cheque for prosecuting him for an offence punishable under Section 138 of N.I. Act. The Hon'ble Apex Court in Bir Singh v. Mukesh Kumar [2019 0 Supreme (SC) 126: 2019 1 KLT 598 : 2019 1 KHC774: 2019 1 KLD 420], where in paragraph Nos. 36 to 40 and 42, summarized the legal position as regards to the applicability of Sections 20, 87, and 139 of the N.I. Act, after referring the earlier decisions of the Apex Court reported in [(2013) 1 SCC 177] MSR Leathers v. S. Palaniappan, [(2008) 14 SCC 457] Southern Sales and Services v. Sauermilch Design and Handels GMBH, [(2001) 6 SCC 16] Hiten P. Dalal v. Bratindranath Banerjee, [AIR 1958 SC 61] State of Madras v. Vaidyanatha lyer, [(2005) 5 SCC 294] Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, [(2007) 1 SCC 70] Rajesh Ranjan Yada @Pappu Yadav v. CBI through its Director, [(2012) 13 SCC 375] Laxmi Dyechem v. State of Gujarat, [(2001) 8 SCC 458] K.N.Beena v. Muniyappan, [(2012) 1 SCC 260] R. Vijayan v. Baby, [(2009) 6 SCC 72] Raj Kumar Khurana v. State of (NCT of Delhi), [(2007) 12 SCC 714] John K. John v. Tom Varghese, [(2008) 4 Crl.A.(V).No.1673 OF 2013 :9: 2025:KER:49806 SCC 54] Krishna Janardhan Bhat v. Dattatraya G. Hegde and [(1992) 1 SCC 489] State of Punjab v. Surinder Kumar. Paragraph Nos. 36 to 40 and 42 are extracted as under:
36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.
37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars.
Crl.A.(V).No.1673 OF 2013 :10: 2025:KER:49806 This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of it exercise of undue influence or coercion. The second question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
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42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had Crl.A.(V).No.1673 OF 2013 :11: 2025:KER:49806 been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.
10. Insofar as the legal position as regards to the issuance of blank cheque is concerned, the same is well settled as extracted in Bir Singh's case (supra). Thus, even a blank cheque leaf, voluntarily signed and handed over by the drawer, which is towards some payment, would attract presumptions under Sections 118 and 139 of the N.I. Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt or legal liability. The law does not mandate that a cheque shall be in the handwriting of the drawer. On the contrary, a cheque can be written by anybody other than a drawer, and the only mandate of law is that the holder in due course/payee has to prove the transaction Crl.A.(V).No.1673 OF 2013 :12: 2025:KER:49806 and execution of the cheque to impose criminal culpability on the drawer. In view of the above legal position, merely because the cheque was written by another person, instead the drawer himself, whether he is capable of writing himself or otherwise, would not make the cheque invalid or the prosecution case untrustworthy. In such cases also, when the transaction and execution of the cheque is proved by evidence, presumptions under Sections 118 and 139 of the NI Act would squarely apply.
11. Therefore, I have no hesitation in holding that the fact that the evidence of PW1 and PW2 to the effect that they did not witness the accused making the entire entries in the cheque leaf is of little consequence. In the case at hand, even the accused does not have a case that the signature found in Ext.P1 cheque does not belong to him. As held in Johnson Zachriah v. State of Kerala reported in 2006(4) KLT 290, an admission of signature in the cheque goes a long way in proving the execution, and the possession of the cheque by the complainant also goes a long way in proving the issuance of the cheque. In M/s. Kalamani Tex and another v. P.Balasubramanian reported in 2021 (2) KHC 517, it has been held by the Hon'ble Supreme Court that, once signature Crl.A.(V).No.1673 OF 2013 :13: 2025:KER:49806 on the cheque is established, the obligation shifts to the accused to discharge the presumption upon him and that the probable defence raised by him must be established by preponderance of probabilities and not as a mere possibility. Similarly, in Manesh Varghees v. Sainulubudeeen and another, reported in 2019 (3) KHC 669, this Court held that, a presumption will have to be made that a negotiable instrument was made or drawn for consideration and that, it was executed for discharge of debt or liability, when once the execution of the said negotiable instrument is either proved or admitted. Keeping in mind, the above said propositions of law, while reverting to the present case, it can be seen that the evidence given by PW1 and the documents which I have mentioned above clearly show that, the complainant had succeeded in establishing the basis for drawing a presumption under Section 139 of the Negotiable Instruments Act.
12. Now the remaining question to be considered is whether the accused had succeeded in displacing the presumption which is available under Section 139 of the N.I. Act in favour of the complainant. While considering the said question, it is necessary to have a look into the defence version of the incident. The case of the Crl.A.(V).No.1673 OF 2013 :14: 2025:KER:49806 accused is that Ext.P1 is a cheque which he had issued as a security in connection with a chitty transaction, he had with the complainant. In order to prove his case, the accused examined one witness as DW1. DW1 is none other than the brother of the accused. According to DW1, his brother, the accused in this case, borrowed an amount of Rs. 85,000/- from the complainant in connection with a chitty transaction. As per the terms of the said transaction, his brother had to pay an amount of Rs. 1,000/- per day to the complainant. DW1 further deposed that Ext.P1 was a cheque leaf issued by his brother in the said transaction as a security. Apart from the above oral evidence, two passbooks and one diary were also produced from the side of the defense and marked in evidence Exts. D1 to D3 subject to proof. However, a perusal of Exts.D1 to D3 clearly shows that there is nothing in those documents to indicate that the said passbook pertains to any chitty transaction or has any connection with the complainant in the present case. Neither the name of the complainant nor his signature or initial appears in the said document. Therefore, I am of the view that the said feeble and interested evidence of DW1 is insufficient to displace the presumption available in favour of the Crl.A.(V).No.1673 OF 2013 :15: 2025:KER:49806 complainant under Sections 118 and 139 of N.I. Act.
13. One of the reasons assigned by the learned Sessions Judge for acquitting the accused was that since the accused was an income tax payee during the period of the alleged transaction, it was impermissible for him to give an amount of Rs. 1,00,000/- in cash directly to the accused, but only through bank transaction. Therefore, the case of the complainant that he lent money to the accused in cash is not believable. The learned counsel for the accused also submitted that as the petitioner was an income tax payee if the petitioner had made a transaction as alleged in the complainant with the accused, the same would have been reflected in the income tax return filed by him and the interest accrued on the amount given to the complainant also should have been reflected in the return filed. The finding of the trial court, as well as the contention of the learned counsel for the accused in the above regard, appear to be rather strange. During examination before the court, PW1 categorically deposed that he had lent money to the accused out of his close friendship with him, and it was given not for charging any interest. Moreover, question such as whether the complainant lent money in violation of any income tax law or Crl.A.(V).No.1673 OF 2013 :16: 2025:KER:49806 whether the complainant disclosed the interest charged from the accused in the complainant's income tax returns are entirely irrelevant in the context of this case.
14. In the impugned judgment, the trial court observed that there was no evidence to show that, before the lending of the money, the accused had contacted the complainant and the complainant had agreed to lend the money. In the judgment, it is also mentioned that in the absence of any evidence regarding the prior meeting or discussion between the complainant and the accused, it cannot be said that there was an understanding between them before the alleged lending of money. This finding also appears to be unreasonable and unsustainable. PW1 clearly stated that he had a close acquaintance with the accused and they were thick friends. Even the accused has not taken a stand that he had no acquaintance with the complainant or that there was no transaction between them. Therefore, the absence of specific evidence showing that the complainant demanded money before the lending of the same, or that there was a prior meeting of minds, has no significance at all. A complainant in a 138 matter is not supposed to tender evidence regarding the date on which the accused Crl.A.(V).No.1673 OF 2013 :17: 2025:KER:49806 approached him with a demand for money, particularly when no questions were asked during cross-examination regarding the date on which the accused approached the complainant and demanded money. Therefore, the omission to mention such details in the evidence is not sufficient to hold that the transaction alleged in this case is not proven.
15. As I have already stated, in the present case, the evidence adduced from the side of the complainant is sufficient to prove the transaction in question and the execution of Ext.P1 cheque by the accused. Once the transaction and execution are proved, the statutory presumption under Section 139 of the N.I. Act would certainly operate in favour of the complainant. However, the said presumption stands not displaced in this case, and therefore, it is liable to be held that the accused is guilty of the offence punishable under Section 138 of N.I. Act. In essence, the judgment of the trial court acquitting the accused deserves interference.
16. In the result, this appeal stands allowed, and the judgment of acquittal rendered by the trial court stands set aside. Consequently, the accused is found guilty of the offence punishable under Section 138 of the N.I. Act and he is convicted and sentenced Crl.A.(V).No.1673 OF 2013 :18: 2025:KER:49806 to undergo simple imprisonment for a period of one day till the rising of the Court and to pay a fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only). Fine shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months. The accused is directed to surrender before the trial court to undergo the sentence positively on 30.09.2025 at 11.00 a.m. and on failure to do so, the trial court is directed to execute the sentence imposed by this Court, without fail.
The Registry is directed to forward a copy of this judgment to the trial court for information and compliance, within seven days.
Sd/-
JOBIN SEBASTIAN JUDGE ANS