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Kerala High Court
Brijith.K.V vs Mathew Varghese (Pappachi) on 1 December, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 1ST DAY OF DECEMBER 2025 / 10TH AGRAHAYANA, 1947
CRL.A NO. 82 OF 2018
AGAINST THE JUDGMENT IN Crl.L.P. NO.7 OF 2018 OF HIGH COURT
OF KERALA
APPELLANT/ COMPLAINANT :
BRIJITH K.V
AGED 43 YEARS,
S/O.K.V.VASUDEVAN,
VRINDAVANAM,
AVALOOKKUNNU P.O.,
ALAPPUZHA.
BY ADVS.
SHRI.GEORGE SEBASTIAN
SRI.JAYAN.C.DAS
RESPONDENTS/ ACCUSED AND STATE :
1 MATHEW VARGHESE (PAPPACHI)
S/O.LATE VARGHESE, VADAKKEVELIYIL,
ASRRAMAM WARD, AVALOOKKUNNU P.O.,
ALAPPUZHA-688001.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031
BY SMT.ANIMA M., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 82 OF 2018
2
2025:KER:92665
BECHU KURIAN THOMAS, J.
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Crl.A.No.82 of 2018
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Dated this the 1st day of December, 2025
JUDGMENT
Appellant was the complainant in C.C.No.1 of 2016 on the files
of the Judicial First Class Magistrate's Court-IV, Alappuzha. By the
impugned judgment dated 31.10.2017, the accused in a proceeding
under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'NI
Act') was acquitted against which this appeal has been preferred. (for the
purpose of easier comprehension, the parties are referred to as they were
referred to in the trial court).
2. The complainant alleged that the accused had borrowed an
amount of Rs.2,00,000/- and issued a cheque bearing No.829210 dated
10.12.2015 for the said amount and when the cheque was presented for
encashment, it returned dishonoured due to insufficiency of funds. After
complying with the statutory requirement of issuing notice to which a
reply notice issued by the accused, the complaint was filed.
3. The complainant examined himself as PW1 and marked
Ext.P1 to P6. After analysing the evidence adduced by the complainant,
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the trial court came to the conclusion that the execution of the cheque
was not proved in accordance with law and that there was no evidence to
prove that the accused had issued a cheque in discharge of a legally
enforceable debt or liability and thereby acquitted the accused.
4. I have heard the learned counsel for the appellant as well as
the learned Public Prosecutor. Though notice to the first respondent was
served, none appears.
5. The complainant alleged that the accused had borrowed an
amount of Rs.2,00,000/- and had issued a cheque in satisfaction of the
said liability. However, when the cheque was presented for encashment,
it returned dishonoured with the memo 'insufficiency of funds' and hence,
after complying with the statutory requirements, he lodged a complaint
under Section 138 of the NI Act. In the reply notice, the accused alleged
that, only an amount of Rs.50,000/- was borrowed by him from the
complainant and that he had repaid a total amount of Rs.75,000/-
including interest for the borrowed amount and also that the complainant
had misused the cheque that was given as a security to him at the time of
borrowal.
6. The complainant alleged that the cheque was issued in
discharge of a liability to the extent of Rs.2,00,000/- while the defence
raised was that all what was borrowed was only Rs.50,000/- which was in
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fact repaid in its entirety along with interest. However, the accused did
not mount the witness box nor did he produce any evidence even to
prove that what was borrowed was only Rs.50,000/- and not
Rs.2,00,000/-. The complainant is benefited by the presumption under
Section 139 of the NI Act, which presumes the existence of a debt or
liability to the extent of the amount mentioned in the cheque. Of course
the said presumption is rebuttable, provided there are sufficient materials
on record for the court to arrive at a conclusion that the presumption had
been rebutted.
7. Unless and until the presumption under Section 139 of the NI
Act is rebutted by the accused, the court will have to presume that the
amount mentioned in the cheque is the debt or liability due from the
drawee. The burden on the complainant to prove the existence of a debt
or liability and the quantum will arise only when the said presumption
under Section 139 of the NI Act is rebutted.
8. In the instant case, the solitary oral evidence adduced is that
by the complainant himself. The cross-examination of the complainant
has not yielded any benefit to the accused. The documents produced by
the complainant indicates the existence of a liability to the tune of
Rs.2,00,000/-, as is evident from Ext.P1 cheque. In the absence of any
evidence from the defence side, this Court is of the view that the
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presumption had not been rebutted. The finding of the trial court that the
execution of the cheque is not proved is perverse since in the light of the
admission of signature in the cheque, the issue relating to execution of
the cheque has to be found in favour of the complainant. Once execution
is proved, the trial court erred in casting the burden of proof on the
complainant ignoring the principle under Section 139 of the NI Act. The
recent decision in Sanjabij Tari v. Kishore S.Borcar [2025 INSC 1158]
is relevant in this context.
9. Having regard to the above circumstances and in the light of
the nature of evidence adduced by the complainant and the defence
raised being not cogent or credible, I am satisfied that the acquittal of the
accused was perverse and liable to be interfered with. The accused is
hence found guilty for the offence under Section 138 of the NI Act.
10. The cheque involved in the case is of the year 2015 and
almost ten years have elapsed. Taking note of the long lapse of time and
in the interest of justice, I am of the view that a sentence of
imprisonment till the raising of the court would suffice with a fine of
Rs.3,00,000/-.
In the result, the judgment dated 31.10.2017 in C.C.No.1 of
2016 on the files of the Judicial First Class Magistrate's Court-IV,
Alappuzha is set aside and the accused is found guilty and sentenced to
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undergo imprisonment till the raising of the court and to pay a fine of
Rs.3,00,000/- to the complainant within three months from the date of
judgment. If the fine amount is not paid, the accused shall undergo
simple imprisonment for a period of three months in default of such
payment.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
