[Cites 11, Cited by 0]
Kerala High Court
Sreedharan vs Rubeena on 3 December, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.A NO. 671 OF 2015
1
2025:KER:93407
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF DECEMBER 2025 / 12TH AGRAHAYANA, 1947
CRL.A NO. 671 OF 2015
AGAINST THE ORDER/JUDGMENT DATED 10.06.2015 IN CRL.L.P.
NO.163 OF 2015 OF HIGH COURT OF KERALA ARISING OUT OF THE
ORDER/JUDGMENT DATED 18.03.2015 IN ST NO.462 OF 2011 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, PATTAMBI
APPELLANT/(COMPLAINANT) :
SREEDHARAN, AGED 46 YEARS,
S/O.RADHAKRISHNAN NAIR,
AZHIVALAPPIL HOUSE, PARUTHUR P.O, PATTAMBI,
OTTAPPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SHRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SMT.VANDANA MENON
RESPONDENTS/(ACCUSED & STATE) :
1 RUBEENA, AGED 39 YEARS
W/O.MASHOOD,
MANGATA KANDY VADIKAL HOUSE, THALASSERY P.O,
KANNUR DISTRICT, KERALA, PIN-670 102.
2 STATE OF KERALA
REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SHRI.A.N.SATHISH KUMAR
SMT.ANIMA M., PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.12.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 671 OF 2015
2
2025:KER:93407
BECHU KURIAN THOMAS, J.
......................................................
Crl.Appeal No. 671 of 2015
...................................................
Dated this the 3rd day of December, 2025
JUDGMENT
Appellant was the complainant in S.T.No.462/2011 on the files of the
Judicial First Class Magistrate Court, Pattambi. The proceedings arose
under Section 138 of the Negotiable Instruments Act, 1881 [for brevity,
the Act]. Parties are referred to as they were in the trial court, with the
appellant being referred to as the complainant and the first respondent
as the accused.
2. By the impugned judgment dated 18.03.2015, the learned Magistrate
acquitted the accused after concluding that there was no evidence to
show the execution of cheque by the accused.
3. According to the complainant, he had business transactions with Sri.Nisar
at Bahrain, who was the brother-in-law of the accused. Pursuant to a
liability of Rs.60,00,000/- due from Sri.Nisar, the accused undertook to
clear the liability and issued two cheques, bearing Nos.192781 and
192782 drawn on State Bank of India, Thalassery Branch, both dated
15.08.2010 for an amount of Rs.30,00,000/- each. When the cheques
were presented for encashment, they were dishonoured on 09.02.2011
with a memo stating 'insufficient funds'. Subsequent to the statutory
CRL.A NO. 671 OF 2015
2025:KER:93407
notice issued by the complainant, which was responded to through a
reply notice denying the liability of the accused under the two cheques,
the complaint was filed.
4. In order to prove the prosecution case, the complainant examined
himself as PW1 and marked Ext.P1 to Ext.P16. After analysing the
evidence adduced in the case, the trial court acquitted the accused, after
coming to the conclusion that execution of Ext.P1 and Ext.P2 cheques
were not proved and therefore, the benefit of presumption could not be
availed by the complainant.
5. Sri.Jayesh Mohankumar, the learned counsel for the
appellant/complainant, submitted that the reasoning of the trial court
while acquitting the accused is totally perverse, warranting interference.
According to him, the accused had unambiguously admitted the
signature on the two cheques, and therefore, in the absence of any
evidence to the contrary having been adduced by the accused, the trial
court ought not to have come to the conclusion that the execution of the
cheque was not proved. The learned counsel further submitted that the
transaction between the brother-in-law of the accused and that of the
complainant having been admitted, the trial court ought to have shifted
the burden on to the accused himself to rebut the presumption and in the
absence of any evidence adduced by her, the court ought to have relied
upon the presumption under Section 139 of the Act to convict the
accused.
6. Sri.Satheesh Kumar A.N., the learned counsel for the first
CRL.A NO. 671 OF 2015
2025:KER:93407
respondent/accused on the other hand, submitted that, the totality of the
evidence adduced by the complainant/PW1 unambiguously indicates the
absence of any consideration for the cheques in question. According to
the learned counsel, the complainant and the accused had no business
transaction at all and that she was only a housewife, with no commercial
dealings of any nature whatsoever. According to him, in the absence of
any evidence to prove liability, the accused could not have executed the
cheques, even though the signatures on the cheques were admitted, as
they are both two different aspects. The learned counsel further pointed
out that in the reply notice issued by the accused, it was specifically
mentioned that the cheques were obtained under duress and threat and
in the absence of any liability or transaction between the accused and
the complainant, the burden was upon the complainant to prove the
existence of a liability, at least between Sri.Nisar and himself. It was
argued that in the absence of any material to prove such liability, the
accused cannot be found to be guilty of the offence alleged.
7. I have considered the rival contentions.
8. The complainant had given evidence as PW1. In his evidence he
admitted that there was no business transaction of any nature between
himself and the accused. The specific case was that his transaction was
with Sri.Nisar-the Brother-in-law of the accused. However, in his cross
examination, he was unable to explain the nature of the business
transaction that created any liability between himself and Sri.Nisar, nor
was he aware about the quantum of liability or even the period when the
CRL.A NO. 671 OF 2015
2025:KER:93407
said liability arose. The complainant was completely clueless about the
details of the alleged liability that existed between himself and Sri.Nisar-
the Brother-in-law of the accused.
9. It had also come out during cross-examination of PW1 that the entries on
the cheques were filled in by the complainant himself, though there is no
mention about that in the complaint or in his proof affidavit. It was also
admitted by the complainant in his cross-examination that the accused is
only a house wife who had no employment of any nature. It was also
admitted by the complainant that the details regarding the business
transaction between him and Sri.Nisar are available in Bahrain.
10. On the basis of the above evidence, the trial court came to the
conclusion that though the signature on the cheques belonged to the
accused, the execution of the two cheques were not proved. As rightly
mentioned in the impugned judgment, the mere admission of a signature
on a cheque does not tantamount to execution of a cheque, as both are
different aspects. For the purpose of proving the execution of a cheque, it
is necessary to establish that the accused had issued a cheque with the
intention of creating a liability and further that a liability must exist either
between the parties or in respect of others whose liability has been
secured by the cheques issued by the accused.
11. In the instant case, no material of any nature has been produced by the
complainant to prove that there was any liability existing between
Sri.Nisar and himself. In the absence of any material to justify the claim
of existence of liability between Sri.Nisar and the complainant, I am of
CRL.A NO. 671 OF 2015
2025:KER:93407
the view that the balance of probabilities lean in favour of the accused,
leading the court to conclude that the complainant has failed to prove
the existence of liability, in discharge of which the cheques were issued.
12. In this context it is appropriate to refer to the decision in Rajesh Jain v.
Ajay Singh (2023) 10 SCC 148, especially paragraph Nos.35 to 44,
which reads as below:-
xxx
35. Section 139 of the NI Act, which takes the form of a 'shall
presume' clause is illustrative of a presumption of law. Because
Section 139 requires that the Court 'shall presume' the fact stated
therein, it is obligatory on the Court to raise this presumption in
every case where the factual basis for the raising of the
presumption had been established. But this does not preclude the
person against whom the presumption is drawn from rebutting it
and proving the contrary as is clear from the use of the phrase
'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been
issued towards discharge of a legally enforceable debt/liability in
two circumstances. Firstly, when the drawer of the cheque admits
issuance/execution of the cheque and secondly, in the event where
the complainant proves that cheque was issued/executed in his
favour by the drawer. The circumstances set out above form the
fact(s) which bring about the activation of the presumptive clause.
[Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35].
37. Recently, this Court has gone to the extent of holding that
presumption takes effect even in a situation where the accused
contends that 'a blank cheque leaf was voluntarily signed and
handed over by him to the complainant. [Bir Singh v. Mukesh
Kumar11]. Therefore, mere admission of the drawer's signature,
without admitting the execution of the entire contents in the
cheque, is now sufficient to trigger the presumption.
CRL.A NO. 671 OF 2015
2025:KER:93407
38. As soon as the complainant discharges the burden to prove
that the instrument, say a cheque, was issued by the accused for
discharge of debt, the presumptive device under Section 139 of
the Act helps shifting the burden on the accused. The effect of the
presumption, in that sense, is to transfer the evidential burden on
the accused of proving that the cheque was not received by the
Bank towards the discharge of any liability. Until this evidential
burden is discharged by the accused, the presumed fact will have
to be taken to be true, without expecting the complainant to do
anything further.
39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to
invoke a rule of law compelling the Jury to reach the
conclusion in the absence of evidence to the contrary from
the opponent but if the opponent does offer evidence to
the contrary (sufficient to satisfy the Judge's requirement of
some evidence), the presumption 'disappears as a rule of
law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is
not as heavy as that usually seen in situations where the
prosecution is required to prove the guilt of an accused. The
accused is not expected to prove the non-existence of the
presumed fact beyond reasonable doubt. The accused must
meet the standard of 'preponderance of probabilities', similar to
a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR
2010 SC 1898)].
41. In order to rebut the presumption and prove to the contrary,
it is open to the accused to raise a probable defence wherein the
existence of a legally enforceable debt or liability can be
contested. The words 'until the contrary is proved' occurring in
Section 139 do not mean that accused must necessarily prove
the negative that the instrument is not issued in discharge of any
debt/liability but the accused has the option to ask the Court to
consider the non-existence of debt/liability so probable that a
CRL.A NO. 671 OF 2015
2025:KER:93407
prudent man ought, under the circumstances of the case, to act
upon the supposition that debt/liability did not exist.
[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also
Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513].
42. In other words, the accused is left with two options. The first
option-of proving that the debt/liability does not exist-is to lead
defence evidence and conclusively establish with certainty that
the cheque was not issued in discharge of a debt/liability. The
second option is to prove the non-existence of debt/liability by a
preponderance of probabilities by referring to the particular
circumstances of the case. The preponderance of probability in
favour of the accused's case may be even fifty one to forty nine
and arising out of the entire circumstances of the case, which
includes: the complainant's version in the original complaint, the
case in the legal/demand notice, complainant's case at the trial,
as also the plea of the accused in the reply notice, his 313
statement or at the trial as to the circumstances under which the
promissory note/cheque was executed. All of them can raise a
preponderance of probabilities justifying a finding that there was
'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2
SCC 513].
43. The nature of evidence required to shift the evidential burden
need not necessarily be direct evidence i.e., oral or documentary
evidence or admissions made by the opposite party; it may
comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the
instrument was not issued in discharge of a debt/liability and, if
he adduces acceptable evidence, the burden again shifts to the
complainant. At the same time, the accused may also rely upon
circumstantial evidence and, if the circumstances so relied upon
are compelling the burden may likewise shift to the complainant.
It is open for him to also rely upon presumptions of fact, for
instance those mentioned in Section 114 and other sections of
the Evidence Act. The burden of proof may shift by presumptions
CRL.A NO. 671 OF 2015
2025:KER:93407
of law or fact. In Kundanlal's case- (supra) when the creditor had
failed to produce his account books, this Court raised a
presumption of fact under Section 114, that the evidence, if
produced would have shown the non-existence of consideration.
Though, in that case, this Court was dealing with the
presumptive clause in Section 118 NI Act, since the nature of the
presumptive clauses in Section 118 and 139 is the same, the
analogy can be extended and applied in the context of Section
139 as well.
13. Since the trial court has already found that the execution of the cheques
were not proved, which finding is not perverse, I am of the view that the
presumption has been rebutted, and the burden was upon the
complainant to prove the existence of a debt or liability. Though Ext.P12
to P16 statements of accounts were produced by the complainant, those
relate to periods subsequent to the issuance of the two cheques. The
existence of a liability cannot be discerned from the said documents.
Since, I do not find any perversity in the conclusions arrived at by
the trial court, I find no merit in this appeal, and it is dismissed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/03/12/2025
