Kerala High Court
Babu Raj vs Ajithkumar on 18 August, 2025
2025:KER:62731
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 18TH DAY OF AUGUST 2025 / 27TH SRAVANA, 1947
CRL.REV.PET NO. 1073 OF 2019
AGAINST THE JUDGMENT IN Crl.A NO.259 OF 2017 OF II
ADDITIONAL SESSIONS COURT, PALAKKAD ARISING OUT OF THE
JUDGMENT IN ST NO.231 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST
CLASS IV, PALAKKAD
REVISION PETITIONER/APPELLANT/ACCUSED:
BABU RAJ
S/O.VASU, KARATH STORE, NEAR INDIAN OIL PETROL
PUMP, KUNNATHURMEDU, PALAKKAD-13.
BY ADVS.
SRI.B.K.GOPALAKRISHNAN
SHRI.KRISHNAKUMAR S.
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 AJITHKUMAR
AGED 52 YEARS
S/O.KOCHU GOVINDAN NAIR, RESIDING AT 17/144(3)
KRISHNA, CHINTHA NAGAR, KADAMKODE, KARINGARAPULLY
POST, PALAKKAD TALUK, PALAKKAD, PIN - 678551
2 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031
R1 BY ADV SRI.P.RAMACHANDRAN
R2 BY SMT.MAYA M N -PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 8.8.2025, THE COURT ON 18.08.2025 DELIVERED THE
FOLLOWING:
Crl.R.P.No.1073 of 2019
2
2025:KER:62731
M.B.SNEHALATHA, J
-------------------------------------------
Crl.R.P.No.1073 of 2019
-------------------------------------------
Dated this the 18th day of August, 2025
ORDER
Challenge in this Criminal Revision Petition is to the judgment
of conviction and order of sentence against the accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'N.I Act).
2. The case of the complainant is that the accused who is a
friend of him borrowed an amount of ₹3,50,000/- and in discharge
of the said debt, accused issued Ext.P1 cheque dated 31.3.2016.
Upon presentation of the cheque for encashment, it was returned
dishonoured on 5.4.2016 due to insufficient funds in the account of
the accused. In spite of receipt of lawyer notice caused to be send
by the complainant intimating the factum of dishonour of cheque
and demanding the amount covered by the cheque, accused
neither paid the amount nor sent any reply. Accused thereby
committed the offence punishable under Section 138 of N.I Act.
2025:KER:62731
3. Accused pleaded not guilty to the accusation and denied
issuance of Ext.P1 cheque in discharge of any debt or liability.
4. Before the trial court, the complainant was examined as
PW1 and Exts.P1 to P3(b) were marked on his side. No defence
evidence was adduced.
5. After trial, the learned Magistrate found the accused
guilty under Section 138 of N.I Act and he was convicted and
sentenced to undergo imprisonment till rising of the court and to
pay a fine of ₹3,50,000/-. In default of payment of fine, to undergo
simple imprisonment for two months. It was further directed that
if the fine amount is realized, the same shall be paid to the
complainant as compensation under Section 357(1) Cr.P.C. Though
the accused preferred appeal as Crl.A No.259/2017, the same was
dismissed by the learned Sessions Judge, confirming the conviction
and sentence.
6. The point for consideration in this revision is whether
the impugned judgment of conviction and sentence needs any
interference by this Court.
7. The complainant who was examined as PW1 has
testified that the accused who is a friend of him, had borrowed a
2025:KER:62731
sum of ₹3,50,000/- on 30.01.2016 for his business purpose and in
discharge of the said liability, accused issued Ext.P1 cheque drawn
on Federal Bank Ltd. Palakkad Branch. His further version is that
upon presentation of Ext.P1 cheque for encashment, it was
returned dishonoured on 5.4.2016 due to insufficient funds in the
account of the accused. Ext.P2 is the dishonour memo issued from
the bank. PW1 has further testified that upon receipt of Ext.P2
dishonour memo from the bank, he caused to sent Ext.P3 lawyer
notice intimating the factum of dishonour of cheque and
demanding the amount covered by Ext.P1 cheque. Ext.P3(a) is the
postal receipt for sending the notice. According to PW1, though
the accused accepted the notice, neither any reply was sent nor
the amount covered by Ext.P1 cheque was paid. Ext.P3(b) is the
acknowledgment card for receipt of notice. According to the
complainant, since the accused failed to pay the amount covered
by Ext.P1 cheque in spite of receipt of notice, accused has
committed the offence punishable under Section 138 of N.I.Act.
8. Admittedly, Ext.P1 is a cheque issued from the account
maintained by the accused at the Federal Bank, Palakkad branch.
It is also not in dispute that Ext.P1 bears the signature of the
2025:KER:62731
accused. Ext.P2 memo issued from the bank would show that
Ext.P1 cheque was dishonoured due to insufficient funds in the
account of the accused.
9. As against the version of the complainant that the
accused borrowed an amount of ₹3,50,000/- from him and issued
Ext.P1 cheque in discharge of the said liability, the defence
canvassed by the accused at the time when PW1 was cross-
examined was that his wife who runs a firm had borrowed some
amount from the complainant who is a money lender and while
lending the amount, the complainant had obtained a signed blank
cheque leaf and Ext.P1 is the said cheque which was misused by
the complainant.
10. But in his statement filed under Section 313(5) of the
Code of Criminal Procedure (Cr.P.C) the accused has stated that he
is running a business in the name and style of 'Karath Agencies';
that for his business purpose, he used to borrow amount from the
complainant on interest; that he had borrowed an amount of
₹60,000/- on 17.03.2015 from the complainant and repaid part of
the amount borrowed and due to financial constrains he could not
repay the balance in time. Subsequently, when he tried to pay the
2025:KER:62731
balance amount, complainant demanded ₹3,50,000/- from him and
threatened him with dire consequences unless he pays an amount
of ₹3,50,000/-. Thereafter, the complainant foisted a false case by
misusing signed the blank cheque, which had been handed over as
a security at the time when he initially borrowed the amount.
11. It is to be borne in mind that at the time of cross
examination of PW1 the defence canvassed by the accused was
that the blank cheque given by him by way of security for the loan
availed by his wife was misused by the complainant. But in his
statement under Section 313(5) Cr.P.C he has got an entirely
different story. Thus, the accused has got inconsistent case as to
how Ext.P1 cheque signed by him reached at the hands of the
complainant.
12. The case put forward by the accused during cross
examination of PW1 that Ext.P1 was a blank cheque given by him
at the time when his wife borrowed amount from the complainant
has given a go by him in his statement filed under Section 313(5)
Cr.P.C. In his statement filed under Section 313 (5) Cr.P.C he would
admit that he used to borrow money from the complainant for his
business needs.
2025:KER:62731
13. The argument advanced by the learned Counsel for the
revision petitioner/accused that the non mentioning of date of
borrowal in the complaint is fatal to the case of the complainant is
untenable. In Ext.P3 lawyer notice sent to the accused and in the
complaint, complainant has categorically stated that Ext.P1 cheque
was issued by the accused in discharge of the debt of ₹3,50,000/-
borrowed by the accused. In spite of receipt of Ext.P3 notice
accused did not care to send any reply disputing the claim made in
Ext.P3 notice. If the accused has had any dispute regarding the
claim made in Ext.P3 notice, nothing prevented him from sending a
reply refuting the case of the complainant.
14. As per Section 118(a) of the Negotiable Instruments
Act, 1881 until the contrary is proved it shall be presumed that
every negotiable instrument was made or drawn for consideration,
and that every such instrument, when it has been accepted,
indorsed, negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration.
15. Section 139 of the Negotiable Instruments Act, 1881
provides that unless the contrary is proved it shall be presumed
2025:KER:62731
that the holder of a cheque received the cheque of the nature
referred to in section 138 for the discharge, in whole or in part, of
any debt or other liability.
16. The presumption mandated by Section 139 of N.I.Act
includes a presumption that there exists a legally enforceable debt
or liability. This is of course a rebuttable presumption and it is
open to the accused to raise a defence wherein the existence of a
legally enforceable debt or liability can be contested. In Rangappa
v. Sri.Mohan reported in AIR 2010 SC 1898, the Apex Court held
that in view of Section 139 of N.I Act there is an initial
presumption, which favours the complainant.
17. In Bir Singh v. Mukesh Kumar (2019(1) KHC 774), the
Apex Court held as under:
"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."
18. In the case at hand accused has not succeeded in
2025:KER:62731
rebutting the presumption under Section 118(a) and 139 of N.I
Act. On the other hand, there is ample evidence before the court to
show that accused borrowed ₹3,50,000/- from the complainant
and in discharge of that liability, he issued Ext.P1 cheque to the
complainant. The evidence on record would show that Ext.P1
cheque issued by the accused was dishonoured due to insufficient
funds in his account and in spite of receipt of Ext.P3 lawyer notice,
accused failed to pay the amount covered by Ext.P1 cheque.
Hence, accused has committed the offence under Section 138 of
N.I.Act as rightly held by the learned Magistrate and the learned
Sessions Judge and this Court finds no reason to unsettle the said
findings. The conviction and sentence against the accused do not
warrant any interference by this Court.
Hence, revision petition stands dismissed.
For remitting the fine amount, revision petitioner/accused is
granted time upto 30.9.2025.
Registry shall transmit the records to the trial court forthwith.
Sd/-
Mms/ab M.B.SNEHALATHA, JUDGE
