Kerala High Court
Seby John vs K.K.Shiju on 6 August, 2025
Crl. Appeal No.268 of 2014 1
2025:KER:58631
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
CRL.A NO. 268 OF 2014
AGAINST THE JUDGMENT OF ACQUITTAL DATED 09.01.2014 IN CC
NO.98 OF 2011 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
(E&O),ERNAKULAM.
ORDER DATED 17-03-2014 IN CRL.L.P NO.47 OF 2014 OF HIGH COURT
OF KERALA.
APPELLANT/COMPLAINANT:
SEBY JOHN, AGED 60 YEARS, S/O.P.D.JOHN,
PUTHOOR HOUSE, 44/184, VATTOLY LANE,
SRMN ROAD, ERNAKULAM-682 018.
BY ADVS.ANILKUMAR C.R.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/ACCUSED/STATE:
1 K.K.SHIJU, AGED 35 YEARS,
S/O.KRISHNAN, KOLLARA HOUSE, KOLLAMKODIMUGAL,
KAKKANAD, COCHIN-682 031.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADVS.SHRI.C.ANILKUMAR (KALLESSERIL)
SRI.C.Y.VINOD KUMAR
R2 BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.08.2025, THE COURT ON 06.08.2025 DELIVERED THE
FOLLOWING:
JOHNSON JOHN, J.
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Crl. Appeal No.268 of 2014
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Dated this the 6th day of August, 2025.
J U D G M E N T
In this appeal, the complainant before the
trial court is challenging the acquittal of the
accused under Section 138 of the Negotiable
Instruments Act (for short 'N.I Act') as per the
impugned judgment.
2. As per the complaint, the accused
borrowed Rs.1,20,000/- for the purpose of his
real estate business from the complainant and
subsequently towards discharge of the liability,
the accused issued a cheque dated 19-07-2010 for
Rs.1,20,000/- to the complainant. When the
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complainant presented the cheque for collection,
the same was dishonoured due to insufficiency of
funds in the account of the accused and in spite
of statutory notice, the accused failed to pay
the cheque amount to the complainant.
3. From the side of the complainant, PW1 was
examined and Exts.P1 to P6 were marked and from
the side of the accused Ext.D1 marked. After
considering the oral and documentary evidence on
record and hearing both sides, the trial court
found that the complainant has not succeeded in
proving the offence under Section 138 of the N.I
Act against the accused and hence the accused was
acquitted.
4. Heard Sri.Anil Kumar.C.R, the learned
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counsel for the appellant, Sri.C.Y.Vinod kumar,
the learned counsel for the first
respondent/accused and Sri.Alex M.Thombra, the
learned Senior Public Prosecutor for the second
respondent.
5. The learned counsel for the appellant
argued that the accused has not disputed the
signature in Ext.P1 cheque and that the trial
court ought to have found that the complainant is
entitled for the benefit of the presumptions
under Sections 139 and 118 of the N.I Act. But
the learned counsel for the accused/first
respondent argued that the complainant has not
disclosed the alleged date of execution and
issuance of the cheque in the complaint or in the
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statutory notice. Further, when the complainant
was examined as PW1, he failed to disclose the
date of execution and issuance of the cheque in
the chief affidavit and only in cross examination
it is stated that he received the cheque one
month before the date of the cheque and that he
paid Rs.1,20,000/- to the accused two months
prior to the date of the cheque. PW1
categorically admitted in cross examination that
at the time of receiving the cheque, there was no
transaction between himself and the accused other
than the transaction relating to Rs.1,20,000/-.
However, PW1 admitted his signature in Ext.D1
receipt dated 18-10-2010 and admitted that as per
Ext.D1 he received Rs.15,000/- from the accused.
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6. In another part of the cross examination,
PW1 stated that the accused brought a typed post
dated cheque to his office and signed the same
before him. PW1 denied the suggestion of the
defence that he obtained a blank cheque from the
accused when the accused borrowed Rs.50,000/- and
that Ext.D1 is the receipt issued while receiving
part payment.
7. It is pertinent to note that Ext.P1
cheque is dated 19-07-2010 and Ext.D1 is dated
18-10-2010. PW1 categorically admitted in cross
examination that he issued Ext.D1 while receiving
Rs.15,000/- from the accused. PW1 has not stated
in chief examination or cross examination that
there was any other transaction between them at
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the time of receiving the cheque. In re-
examination, PW1 stated that he received the
amount as per Ext.D1 for sale of thread rubber to
the accused. But PW1 admitted that the said fact
is not stated in Ext.D1.
8. It is pertinent to note that the
statement of PW1 in re-examination that he sold
thread rubber to the accused is contrary to his
admission in cross examination that there was no
transaction other than the money transaction
relating to the cheque.
9. In M.S.Narayana Menon v. State of Kerala
(2006(6) SCC 39), the Hon'ble Supreme Court
considered the nature of the standard of proof
for rebutting the presumption under Section 139
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of the N.I Act and it was held that if some
material is brought on record consistent with the
innocence of the accused, which may reasonably be
true, even though it is not positively proved to
be true, the accused would be entitled to
acquittal.
10. In Basalingappa v. Mudibasappa (2019 (5)
SCC 418), the Hon'ble Supreme Court summarised
the principles of law governing the presumptions
under Sections 118 and 139 of the N.I Act in the
following manner :
"(i) Once the execution of cheque is admitted
Section 139 of the Act mandates a presumption
that the cheque was for the discharge of any
debt or other liability.
(ii) The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise the probable defence. The
standard of proof for rebutting the
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presumption is that of preponderance of
probabilities.
(iii) To rebut the presumption, it is open for
the accused to rely on evidence led by him or
accused can also rely on the materials
submitted by the complainant in order to raise
a probable defence. Inference of preponderance
of probabilities can be drawn not only from
the materials brought on record by the parties
but also by reference to the circumstances
upon which they rely.
(iv) That it is not necessary for the accused
to come in the witness box in support of his
defence, Section 139 imposed an evidentiary
burden and not a persuasive burden.
(v) It is not necessary for the accused to
come inthe witness box to support his
defence."
11. It is well settled that the standard of
proof which is required from the accused to
rebut the statutory presumption under Sections
118 and 139 of the N.I Act is preponderance of
probabilities and that the accused is not
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required to prove his case beyond reasonable
doubt. The standard of proof, in order to rebut
the statutory presumption can be inferred from
the materials on record and circumstantial
evidence.
12. In Dashrathbhai Trikambhai Patel v.
Hitesh Mahendrabhai Patel [(2023) 1 SCC 578], it
was held by the Honourable Supreme Court that
when a part payment of the debt is made after the
cheque was drawn but before the cheque is
encashed, such payment must be endorsed on the
cheque under Section 56 of the NI Act and the
cheque cannot be presented for encashment without
recording the part payment. It was further held
that if such a cheque was presented for
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encashment without recording the part payment and
if the same is dishonoured on presentation, the
offence under Section 138 of the NI Act would not
be attracted, since the cheque does not represent
a legally enforceable debt at the time of
encashment.
13. As noticed earlier, the complainant
has not disclosed the date of execution and
issuance of the cheque in the complaint or
statutory notice. The evidence of PW1 in cross
examination that he receieved the cheque one
month prior to the date of Ext.P1 cheque and that
the financial transaction was two months prior to
the date mentioned in the cheque and that the
accused came to his office with a typed post
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dated cheque are not at all reliable and in that
circumstance, I find no reason to interfere with
the finding in the impugned judgment that the
complainant has not succeeded in proving the
offence under Section 138 of the N.I Act against
the accused. Therefore, I find that this appeal
is liable to be dismissed.
In the result, this appeal is dismissed.
Interlocutory applications, if any pending,
shall stand closed.
Sd/-JOHNSON JOHN, JUDGE.
amk
