Kerala High Court

K.Abdulla vs K.K.Ravindran on 21 August, 2025

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Crl. Appeal No. 1880/2010
                                                       2025:KER:63169




                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          THURSDAY, THE 21ST DAY OF AUGUST 2025 / 30TH SRAVANA, 1947

                            CRL.A NO. 1880 OF 2010

      JUDGMENT DATED 06.08.2009 IN ST          NO.50   OF   2008   OF   JUDICIAL
MAGISTRATE OF FIRST CLASS -II, NADAPURAM

APPELLANT/COMPLAINANT:

              K.ABDULLA, S/o. ASSAN KUTTY, AGED 55 YEARS, BUSINESS,
              KANHIRAMULLATHIL HOUSE, P.O.KAYAKKODI, KOZHIKODE DISTRICT.


              BY ADV SHRI.R.K.MURALEEDHARAN


RESPONDENTS/ACCUSED & STATE:

      1       K.K.RAVINDRAN, S/O. E.K. VAIDYAR, LIC AGENT, KARUVANKANDIYIL,
              KAYAKKODI AMSOM, AAKKAL DESOM, KOZHIKODE DISTRICT.

      2       STATE OF KERALA, REPRESENTED BY
              THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.


              BY ADV. SHRI.M.GOPIKRISHNAN NAMBIAR


       THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.08.2025,

      THE COURT ON 21.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 1880/2010
                                                            2025:KER:63169

                            JOHNSON JOHN, J.
           ---------------------------------------------------------
                       Crl. Appeal No. 1880 of 2010
            ---------------------------------------------------------
                    Dated this the 21st day of August, 2025

                                  JUDGMENT

In this appeal, the complainant before the trial court is

challenging the acquittal of the accused under Section 138 of the

Negotiable Instruments Act, 1881 ('N.I Act' for short) as per the

impugned judgment.

2. As per the complaint, in discharge of a debt due, the accused

issued cheque dated 3.10.2007 for Rs.30,000/- to the complainant and

when the cheque was presented for collection, the same was

dishonoured due to insufficiency of funds in the account of the accused

and in spite of issuance of statutory notice, the accused failed to pay

the cheque amount to the complainant.

3. From the side of the complainant, PWs 1 and 2 were examined

and Exhibits P1 to P5 were marked and from the side of the accused,

Exhibits D1 to D3 were marked.

4. After considering the oral and documentary evidence on record

and hearing both sides, the trial court found that the complainant has

2025:KER:63169 not succeeded in proving the offence under Section 138 of the N.I Act

against the accused and hence, the accused was acquitted.

5. Heard Sri. Harishankar K.V., the learned counsel for the

appellant, Sri. Chethan Krishna R, the learned counsel representing the

learned counsel for the first respondent/accused on record, and Sri. Alex

M. Thombra, the learned Public Prosecutor for the second respondent.

6. The learned counsel for the appellant argued that the accused

has not disputed the signature in Exhibit 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.

7. But, the learned counsel for the accused/first respondent

argued that the evidence of PWs 1 and 2 regarding the place of

execution and issuance of cheque are contradictory and even though,

the complainant, when examined as PW1, stated that the accused paid

Rs.5,000/- in cash and also executed an agreement for the balance

amount and that he is in possession of the said agreement, the same is

not produced or marked in evidence. It is also pointed out that the

2025:KER:63169 specific case of the accused is that the cheque in question was handed

over to one Kunhiraman and not to the complainant.

8. It is pertinent to note that the complainant has not specifically

stated the place of execution and issuance of the cheque in the

complaint. In cross examination, PW1 stated that the accused issued the

cheque to him, while he was in the room of Panchayath member, Sasi.

According to PW1, Panchayath member, Sasi, is also a witness in the

agreement executed between himself and the accused. But, PW2,

Minishan, categorically deposed in cross examination that the

transaction between the complainant and the accused was on the road

at a distance of 5 to 10 metres from the taxi stand. There was no

attempt on the part of the complainant to clarify the contradiction in the

evidence of PWs 1 and 2 regarding the place of execution and issuance

of the cheque in question.

9. Even though, the complainant has a case that his daughters--

Sareena and Sabana, purchased life insurance policies from the accused

and the accused failed to pay the premium payable from out of the

amount borrowed from the complainant as promised, a perusal of

2025:KER:63169 Exhibits D1 to D3 would show that the LIC Premium of his daughters

were paid up to the month of June, 2006 and therefore, the case of the

complainant that the accused failed to pay the premium after the month

of February, 2006, cannot be true and I find no reason to disagree with

the said finding of the trial court.

10. It is pertinent to note that the evidence of PWs 1 and 2

regarding the place of execution and issuance of cheque are

contradictory and further, the complainant has also not produced the

agreement said to be executed between the parties in connection with

the transaction.

11. 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 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.

12. In Basalingappa v. Mudibasappa [(2019) 5 SCC 418],

2025:KER:63169 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 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.