Kerala High Court
Yousuf vs State Of Kerala on 22 August, 2025
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Crl. Appeal No. 442/2014
2025:KER:63742
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 22ND DAY OF AUGUST 2025 / 31ST SRAVANA, 1947
CRL.A NO. 442 OF 2014
JUDGMENT DATED 30.01.2014 IN ST NO.504 OF 2011 OF JUDICIAL
MAGISTRATE OF FIRST CLASS , PATTAMBI
APPELLANT/COMPLAINANT:
YOUSUF, AGED 63 YEARS, S/O.MUHAMMED,INJEERUVALAPPIL HOUSE,
P.O CHAZHIYATTIRI, (VIA) PERINGODE, NAGALASSERY VILLAGE,
PALAKKAD DISTRICT PIN 679 532.
BY ADV SRI.P.K.MOHANAN (PALAKKAD)
RESPONDENTS/STATE AND ACCUSED:
1 STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERAKULAM PIN 682 031.
2 KHADEEJA, AGED 48 YEARS, D/O.PANJAMU, MANIYARAMKUNNATH
HOUSE, PILAKKATTIRI, NAGALASSERY POST, PALAKKAD DISTRICT,
PIN 679 533.
BY ADV SRI.R.SREEHARI
SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2025, THE
COURT ON 22.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 442/2014
2025:KER:63742
JOHNSON JOHN, J.
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Crl. Appeal No. 442 of 2014
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Dated this the 22nd day of August, 2025
JUDGMENT
This appeal by the complainant is against the acquittal of the
accused under Section 138 of the Negotiable Instruments Act, 1881 ('N.
I Act' for short).
2. As per the complaint, the accused borrowed Rs.4,90,000/-
from the complainant and when the complainant demanded back the
amount, the accused issued cheque dated 10.01.2011 for Rs.4,90,000/-
while they were in the residence of the complainant. When the
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 issuance of statutory notice, the accused failed to pay
the cheque amount to the complainant.
3. Before the trial court, from the side of the complainant, PW1
examined and Exhibits P1 to P6 were màrked and from the side of the
accused, DW1 examined.
4. 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
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against the accused and hence, the accused was acquitted.
5. Heard Sri. P.K. Mohanan (Palakkad), the learned counsel for the
appellant, Sri. R. Sreehari, the learned counsel for the accused/second
respondent and Smt. Hasnamol N. S., the learned Public Prosecutor for
the first 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/second respondent
argued that the complainant has not disclosed the alleged date of
execution and issuance of the cheque in the complaint or in the chief
affidavit of PW1 and that the evidence of PW1 in cross examination
regarding the alleged transaction does not tally with the averments in
the complaint.
8. In cross examinàtion, PW1 deposed that the accused borrowed
the amount in September, 2010 and that the amount was advanced to
the accused on the security of the cheque issued.
9. But, it is pertinent to note that as per the complaint and the
evidence of PW1 in chief examination, the accused issued Exhibit P1
cheque dated 10.01.2011, when he demanded back the amount
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borrowed by the accused.
10. The accused is examined as DW1 and according to DW1, she
never issued any cheque to the complainant and when they purchased
gold ornaments from Meezan Gold Jewellery in connection with the
marriage of the daughter of one Ramlath, the staff of the jewellery
demanded a cheque of DW1 in addition to the cheque of the elder
brother of the husband of Ramlath and then she issued a blank cheque
to the staff of Meezan Gold Jewellery. According to DW1, she never
borrowed any amount from the complainant .
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),
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
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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.
(v) It is not necessary for the accused to come inthe witness
box to support his defence."
13. 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 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.
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14. In ANSS Rajashekar v. Augustus Jeba Ananth [2019 (2)
KHC 155= 2019 (1) KLD 492], it was held that when evidence elicited
from complainant during cross examination creates serious doubt about
the existence of debt and about the transaction and the complainant fails
to establish the source of funds, the presumption under Section 139 is
rebutted and the defence case stands probabilised.
15. In APS Forex Services Pvt. Ltd. v. Shakti International
Fashion Linkers and Others [2020 (1) KHC 957 = 2020 (1) KLD 313],
it was held that whenever the accused questioned the financial capacity
of the complainant in support of his probable defence despite the
presumption under Section 139 onus shifts again on the complainant to
prove his financial capacity.
16. When considering the evidence in this case on the basis of the
above legal principle, it is apparent that there existed a contradiction in
the complaint moved by the appellant as against his cross examination
relatable to the time of execution and issuance of the cheque. It is
pertinent to note that what is stated in the complaint is that when the
complainant demanded back the amount borrowed by the accused, the
accused issued the cheque dated 10.01.2011. But, what is deposed by
PW1 in cross examination is that the accused borrowed the amount
during September, 2010 and issued the cheque as security. In cross
examination, PW1 categorically stated that he advanced the amount to
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the accused on the security of the cheque and that there was no other
agreement between himself and the accused.
17. The above evidence of PW1 in cross examination probabilise
the version of the defence, especially in view of the fact that the
complainant has not disclosed the date of execution and issuance of
cheque in the complaint or in his chief affidavit and therefore, 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.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
