Kerala High Court
Vasanthan S vs T.P Jayathilak on 18 August, 2025
Crl.R.P.No.1011 of 2018 1
2025:KER:62339
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. 1011 OF 2018
AGAINST THE JUDGMENT IN Crl.A NO.12 OF 2012 OF SESSIONS
COURT, THALASSERY ARISING OUT OF THE JUDGMENT IN ST NO.1817 OF 2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANNUR
REVISION PETITIONER/COUNTER PETITIONER/RESPONDENT:
VASANTHAN S, AGED 60 YEARS
S/O.ANANDAN, SANKARAN HOUSE, CHEMMASSERY PARA,
P.O.AZHIKODE, KANNUR - 670009
BY ADV SRI.K.RAJESH SUKUMARAN
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 T.P JAYATHILAK, AGED 55 YEARS
S/O.NARAYANAN NAMBIAR,
THIYANCHERI PRAKKADVATH HOUSE, KALLIASERRY CENTRAL, P.O,
ANCHAMPEEDIKA, MOTTAMMAL, KANNUR, PIN - 670561
KANNUR
2 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADVS.
FOR R1 BY SRI.MATHEW KURIAKOSE
BY SMT.MAYA M.N.-PUBLIC PROSECUTOR
SRI.G.GIREESH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON
8.08.2025, THE COURT ON 18.8.2025 DELIVERED THE FOLLOWING:
Crl.R.P.No.1011 of 2018 2
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M.B.SNEHALATHA, J
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Crl.R.P.No.1011 of 2018
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Dated this the 18th day of August, 2025
ORDER
Revision Petitioner/accused challenges the concurrent finding
of conviction and sentence against him 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 borrowed
an amount of ₹2 lakhs from him and in discharge of the said
liability, accused issued two cheques of ₹1 lakh each to him. When
the cheques were presented for encashment, the same were
dishonoured due to insufficient funds in the account of the accused.
Though the accused accepted the notice sent by the complainant
intimating the factum of dishonour of cheque and demanding the
amount covered by the said two cheques, accused failed to pay the
amount and thereby committed offence punishable under Section
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138 of the N.I. Act.
3. Accused pleaded not guilty to the accusation and denied his
liability to pay any amount to the complainant.
4. After trial, the learned Magistrate found the accused guilty
under Section 138 of N.I Act and the accused was convicted and
sentenced to simple imprisonment for two months and to pay
compensation of ₹2,25,000/- to the complainant under Section
357(3) of the Cr.P.C. In default of payment of compensation to
undergo simple imprisonment for three months.
5. In appeal filed by the accused as Crl.Appeal.No.12/2012
the conviction under Section 138 N.I.Act was confirmed, but the
sentence awarded by the trial court was modified. The substantive
sentence of simple imprisonment for two months was reduced to
imprisonment till the rising of the court. The direction to pay
compensation of ₹2,25,000/- to the complainant was confirmed in
appeal.
6. Revision petitioner/accused assails the conviction and
sentence on the ground that Exts.P1 and P2 cheques were blank
signed cheques issued as security at the time of borrowing an
amount of ₹10,000/- each from the complainant and he has not
executed Exts.P1 and P2 cheques.
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7. Per contra, the learned counsel appearing for the
complainant supported the findings of the learned Magistrate and
the learned Appellate Court and contended that there are no
reasons to unsettle the finding of conviction and sentence.
8. In view of the rival contentions, the point for consideration
is whether there are any grounds to interfere with the impugned
judgment of conviction and sentence.
9. Admittedly Exts.P1 and P2 cheques are two cheques drawn
on cheque leaves issued from the account of the accused
maintained by him at State Bank of India, Kannur branch. The
signatures in Exts.P1 and P2 cheques are also admitted by the
accused. It is also not in dispute that Exts.P1 and P2 cheques were
dishonoured due to insufficient funds in the account of the accused.
Exts.P3 and P4 are the dishonor memos issued from the Bank.
10. The categoric version of the complainant who was
examined as PW1 is that accused who is a neighbour and friend of
him borrowed ₹2 lakhs from him in December 2009 and in
discharge of the said liability, accused issued Exts.P1 cheque dated
15.03.2010 and P2 cheque dated 15.04.2010. PW1 has further
testified that upon presentation of Exts.P1 and P2 cheques for
encashment, the cheques were dishonoured due to insufficient
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funds in the account of the accused. Exts.P3 and P4 are the memos
issued from the Bank. Upon receipt of Exts.P3, P4 dishonor memos
from the Bank, he caused to send lawyer notice; Ext.P5 is the copy
of lawyer notice. Ext. P6 is the postal receipt and Ext.P7 is the
acknowledgment card. PW1 has further testified that in spite of
receipt of Ext.P5 lawyer notice, accused neither sent any reply nor
paid the amount covered by Exts.P1 and P2 cheques.
11. As against the version of the complainant, the defence put
forward by the accused is that on 28.05.2006 and on 28.06.2006
he had borrowed ₹10,000/- each from the complainant and had
issued two signed blank cheques leaves and blank signed stamp
paper and the complainant misused the said two blank signed
cheques given as security.
12. Though the accused would contend that two signed blank
cheques were delivered by him to the complainant and the said two
cheques were misused by the complainant there is no acceptable
and reliable evidence to substantiate the said contention. If he had
only borrowed ₹10,000/- from the complainant and had delivered
two signed blank cheques as contended by him, nothing prevented
him from sending a reply to Ext.P5 lawyer notice issued by the
complainant. In spite of receipt of Ext.P5 notice, accused did not
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care to send any reply. The said conduct of the accused in not
sending any reply to Ext.P5 notice speaks volumes in the facts and
circumstances of the case.
13. Section 118(a) of the N.I. Act provides that 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. Therefore, the presumption as to consideration
is available to the complainant.
14. Section 139 of the N.I. Act provides that the Court shall
presume unless the contrary is proved, that the cheque was
received by the holder for the discharge in full or in part of any
debt or other liability.
15. In Hiten P.Dalal v. Bratindranath Banerjee [(2001 (6) SCC
16), the Hon'ble Apex Court held that both Sections 138 and 139 of
N.I.Act, requires that the Court "shall presume" the liability of the
drawer for that amount, which is mentioned on the cheque. It was
further held by the Apex Court that it is obligatory on the Court to
raise such a presumption where a factual basis for raising such
presumption has been established.
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16. The presumption under Section 139 N.I Act entails an
obligation on the court to presume that the cheque in question was
issued by the drawer or accused in discharge of a debt or liability.
Of course, it is a rebuttable presumption. It is a settled position of
law that the standard of proof for doing so is that of preponderance
of probabilities. Accused has not succeeded in rebutting the said
presumption. For rebutting the presumptions under Section 118(a)
and 139 of N.I.Act accused has to lead credible evidence. Mere
denial of the case of the complainant is not sufficient to shift this
burden on the complainant.
17. In Rengappa v. Sri.Mohan reported in AIR 2010 SC
1898, the Apex Court held that 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. It was also held that in view of Section 139 of N.I.
Act there is an initial presumption, which favours the complainant.
Of course, it is a rebuttable presumption, but the accused has not
succeeded in rebutting the said presumption.
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18. On the other hand, complainant has succeeded in
establishing that accused issued Exts.P1 and P2 cheques in
discharge of his liability to pay an amount of ₹2 lakhs due to the
complainant. It stands established that upon presentation of
Exts.P1 and P2 cheques for encashment, it was returned
dishonoured due to insufficient funds in the account of the accused
and in spite of receipt of Ext.P5 lawyer notice, accused failed to pay
the amount covered by Exts. P1 and P2 cheques. Accused has
thereby committed offence punishable under Section 138 N.I. Act
as rightly held by the learned Magistrate and the appellate court
and I find no reason to interfere with the finding of conviction and
order of sentence against the accused for the offence under Section
138 of N.I. Act.
19. In the result revision petition stands dismissed.
20. The trial court shall take steps to execute the sentence.
Registry shall transmit the records to the trial court forthwith.
Sd/-
M.B.SNEHALATHA
JUDGE
Mms
