Kerala High Court
V.K.Selvan vs Sumithra on 3 June, 2025
2025:KER:39060
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947
CRL.A NO. 1162 OF 2011
AGAINST THE JUDGMENT DATED 31.03.2011 IN ST
NO.2827 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
ALATHUR
APPELLANT/COMPLAINANT:
V.K.SELVAN
S/O.KRISHNAN
VADAKKAETHARA, KIZHAKKANCHERRY PO,
ALATHUR TALUK, PALAKKAD.
BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENTS/ACCUSED AND STATE:
1 SUMITHRA
S/O.RAMACHADRAN, PULINKUTTATHIL,
CHALLITHARA, MANJAPRA,
ALATHUR TALUK, PALAKKAD.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
2025:KER:39060
CRL.A NO. 1162 OF 2011
2
SHRI.K.P.SUDHEER
SRI.SUMODH MADHAVAN NAIR
SRI. RENJITH GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:39060
CRL.A NO. 1162 OF 2011
3
JUDGMENT
Dated this the 3rd day of June, 2025 The complainant in S.T.2827/2008, on the files of the Judicial First Class Magistrate Court, Alathur, assails judgment of acquittal in the above case dated 31.03.2011, arraying the accused in the above case as the 1st respondent. The 2nd respondent herein is the State of Kerala, represented by the learned Public Prosecutor.
2. Heard the learned counsel for the appellant/complainant and the learned Public Prosecutor in detail. Perused the verdict under challenge and the records of the trial court.
3. Parties in this appeal shall be referred as 'complainant' and 'accused' hereafter.
4. In this matter, on dishonour of cheque for Rs.50,000/-, drawn on Kannambra Co-operative Service 2025:KER:39060 CRL.A NO. 1162 OF 2011 4 Bank Ltd., dated 18.06.2008, alleged to be issued by the accused to the complainant in discharge of a legal liability, the complainant approached the trial court alleging that the accused committed offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act' for short).
5. The trial court took cognizance for the said offence and proceeded with trial. During trial, PW1 and PW2 were examined and Exts.P1 to P8 were marked on the side of the complainant. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, Ext.D1 copy of agreement was marked on the side of the accused.
6. On appreciation of evidence, the trial court found that the case put up by the accused to the effect that 2025:KER:39060 CRL.A NO. 1162 OF 2011 5 she had issued Ext.P1 cheque as a blank signed one for a transaction between the complainant and the accused for sale of property of the complainant on receipt of Rs.20,000/- as sale consideration.
7. While impeaching the veracity of the trial court judgment, it is argued by the learned counsel for the accused that in the instant case, even though Ext.D1 agreement is admitted by PW1, the specific case is that since the agreement could not be executed, he received back Rs.20,000/- paid on the date of execution of Ext.D1 agreement. According to the learned counsel for the complainant, now the case advanced by the complainant before the trial court is that the accused borrowed Rs.50,000/- (Rupees fifty thousand only) from the complainant on 12.04.2008 as ready cash and in order to discharge the said liability, the accused issued Ext.P1 2025:KER:39060 CRL.A NO. 1162 OF 2011 6 cheque. According to the learned counsel for the complainant, the issuance of blank signed cheque is admitted by the accused for a different transaction. The evidence of the complainant, who was examined as PW1, regarding the transaction and execution of Ext.P1 cheque was not shaken during cross-examination and therefore, the trial court went wrong in believing the case advanced by the accused.
8. Adverting to the matter in issue, the points arise for consideration are :
1. Whether the trial court wrongly acquitted the accused on the finding that he did not commit the offence punishable under Section 138 of the NI Act?
2. Whether the trial court verdict would require interference?
3. Order to be passed?
2025:KER:39060 CRL.A NO. 1162 OF 2011 7
9. In this matter, according to the complainant and as deposed by him as PW1, the accused borrowed Rs.50,000/- from the complainant as ready cash on 12.04.2008 and Ext.P1 cheque dated 18.06.2008 was issued to discharge the said liability. When the cheque was presented for collection, the same was dishonoured as per Ext.P2 memo and Ext.P3 intimation. Even though notice intimating the dishonour of Ext.P1 cheque and demanding the amount covered by Ext.P1 cheque was issued to the accused, the accused did not pay amount and instead the accused sent Ext.P7 reply.
10. During cross-examination of PW1 and also as per Ext.P7 reply notice, the accused denied the transaction between herself and the complainant. She also denied the execution of cheque. In this context, the trial court found that the complainant is duty bound to prove the 2025:KER:39060 CRL.A NO. 1162 OF 2011 8 transaction and execution of the cheque. At the same time, the trial court given much emphasis to Ext.D1 sale agreement, admittedly, entered into between the accused and the complainant where Rs.20,000/- was paid by the accused to the complainant's husband and according to PW1, the said amount was repaid. In the instant case, the trial court given much emphasis to Ext.D1 agreement which has been tendered in evidence without examining anybody. Regarding execution of Ext.D1 agreement and payment of Rs.20,000/- as sale consideration, the complainant admitted the same. But according to PW1, he had received back Rs.20,000/- so paid. The case of the accused is that at the time of execution of Ext.D1, she issued a blank cheque. She did not state that the cheque was either signed or not signed. In fact, the cheque was dishonoured as per Ext.P2, stating that 'funds insufficient' and not for the reason 'signature 2025:KER:39060 CRL.A NO. 1162 OF 2011 9 differs'.
11. Normally, when the bank officials did not notice any difference in the signature with that of specimen signature of the payer, when there was no sufficient money in the account of the payer to honour the cheque, the bank would return the cheque for the said reason. At the same time, where the bank officials notice difference in the signature of the payer, they would record the same as a reason or as an additional reason for dishonouring the cheque. Here, issuance of cheque is admitted for a different transaction. When such a cheque was dishonoured by the bank without mentioning anything regarding difference in signature, it has to be inferred that the cheque was issued by the payer duly signed by him as that of the accused.
12. In a prosecution under Section 138 of the NI Act, the complainant has an initial burden to prove the 2025:KER:39060 CRL.A NO. 1162 OF 2011 10 transaction and execution of cheque, so as to avail the benefits of presumptions under Sections 118 and 139 of the NI Act.
13. In this connection, it is relevant to refer the decision of the Apex Court, reported in [2019 0 Supreme (SC) 126 : 2019 1 KLT 598 : 2019 1 KHC 774 : 2019 1 KLD 420] Bir Singh v. Mukesh Kumar, where in paragraph Nos. 36 to 40 and 42, the Apex Court summarized the legal position as regards to the applicability Sections 20, 87 and 139 of the NI 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 Iyer, [(2005) 5 SCC 294] Ranjitsing 2025:KER:39060 CRL.A NO. 1162 OF 2011 11 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 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 2025:KER:39060 CRL.A NO. 1162 OF 2011 12 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 it 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. 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 2025:KER:39060 CRL.A NO. 1162 OF 2011 13 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 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 been given to the appellant-
2025:KER:39060 CRL.A NO. 1162 OF 2011 14 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."
14. On perusal of evidence given by PW1, it could be noticed that Ext.D1 agreement, in between the complainant and the accused was executed on 28.08.2006. According to PW1, Ext.D1 was closed on getting back the sale consideration. The case of the complainant is that after receiving Rs.50,000/-as ready cash on 12.04.2008, Ext.P1 was executed. In fact, nothing is extracted to disbelieve the said evidence of PW1 to hold that the complainant failed to 2025:KER:39060 CRL.A NO. 1162 OF 2011 15 discharge his initial burden in the matter of transaction and execution of Ext.P1 cheque. Therefore, the trial court went wrong in holding that the complainant failed to prove the transaction and Ext.P1 cheque herein merely relying on Ext.D1.
15. In view of the above, the verdict under challenge would require interference and the appeal succeeds accordingly.
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 convicted for the offence punishable under Section 138 of the NI Act and she is sentenced to undergo simple imprisonment for a period of one day till rising of the Court and to pay fine of Rs.1,00,000/- (Rupees one lakh only). Fine shall be given as compensation to the complainant under Section 2025:KER:39060 CRL.A NO. 1162 OF 2011 16 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of four months. The accused is directed to surrender before the trial court to undergo the modified sentence positively at 11.00 am on 03.07.2025 and on failure to do so, the trial court is directed to execute the modified sentence imposed by this Court, without fail.
Registry is directed to forward a copy of this judgment to the trial court for information and compliance, within two weeks.
Sd/-
A. BADHARUDEEN JUDGE nkr