[Cites 9, Cited by 0]

Kerala High Court

K.R.Natarajan vs Prof.P.R.R.Babu on 15 December, 2025

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

Crl. Appeal No.1093/15                1

                                                           2025:KER:97093



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

              THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    MONDAY, THE 15TH DAY OF DECEMBER 2025 / 24TH AGRAHAYANA, 1947

                           CRL.A NO. 1093 OF 2015

          AGAINST THE JUDGMENT DATED 29.04.2015 IN CC NO.1338 OF 2009

OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA

APPELLANT/COMPLAINANT:

               K.R.NATARAJAN
               S/O. K.S.RAMAN,
               LATHA NIVAS, (MALIKEKKAL PARAMBIL HOUSE),
               CMC-I, CHERTHALA P.O.,
               CHERTHALA, ALAPPUZHA DISTRICT-688 524.


               BY ADVS.
               SHRI.D.NARENDRANATH
               SHRI.M.HARISHARMA




RESPONDENTS/ACCUSED & STATE:

      1        PROF.P.R.R.BABU
               PUTHUMANAPPARAMBIL,
               CMC-2, CHERTHALA P.O.,
               CHERTHALA, PIN-688 524.

      2        STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA,
               ERNAKULAM-682 031.


               BY ADVS.
               SRI.C.S.MANU
               SHRI.S.K.PREMRAJ
 Crl. Appeal No.1093/15             2

                                                      2025:KER:97093




               SMT. SREEJA V., PUBLIC PROSECUTOR


       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2025,
THE COURT ON 15.12.2025 DELIVERED THE FOLLOWING:
 Crl. Appeal No.1093/15               3

                                                               2025:KER:97093




                        BECHU KURIAN THOMAS, J.
                        --------------------------------
                        Crl.Appeal No.1093 of 2015
                        ---------------------------------
                   Dated this the 15th day of December, 2025

                                 JUDGMENT

Appellant was the complainant in C.C. No.1338 of 2009 on the files

of the Judicial First Class Magistrate's Court-I, Cherthala. He is aggrieved

by the judgment of acquittal of the accused dated 29.04.2015 and has

hence preferred this appeal. For the purpose of easier reference, the

parties are referred to as they were in the trial court with the appellant

as the complainant and the first respondent as the accused.

2. The complainant alleged that the accused had taken a loan of

Rs.3,00,000/- on 15.03.2009 from him, and handed over a signed

cheque bearing No.43340, for the said amount, drawn on Lord Krishna

Bank, Cherthala Branch dated 16.04.2009. The cheque when presented

for encashment before the State Bank of Travancore, Cherthala was

dishonoured due to insufficient funds. Consequent to a lawyer's notice

sent on 14.07.2009, the accused failed to issue any reply notice or repay

the amount and thereafter the complaint was lodged.

3. The complainant examined himself as PW1 and another

independent witness as PW2 and marked Ext.P1 to Ext.P6 while the

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defence examined DW1 and marked Ext.D1. After analysing the evidence

adduced in the case, the trial court came to the conclusion that the

complainant failed to prove the execution of Ext.P1 cheque and the

accused was acquitted.

4. Sri. Harisharma, the learned counsel for the

appellant/complainant submitted that the judgment of the trial court is

totally perverse as it had not considered the presumption available to the

complainant under section 139 of the Negotiable Instruments Act, 1881

(for short 'the NI Act'). It was also submitted that the accused was

acquitted after finding minor inconsistencies, which had no relevance to

the complainant's case and therefore the acquittal of the accused is

liable to be set aside. The learned counsel also argued that the evidence

of PW1 proved that the accused had borrowed an amount of

Rs.3,00,000/- on 15.03.2009 in satisfaction of which, the accused issued

a post dated cheque dated 16.04.2009, which was returned dishonoured

on its presentation. It was also argued that as the statutory

requirements were complied with and since the accused had failed to

rebut the presumption under section 139 of the NI Act, the appeal ought

to be allowed.

5. Sri. C.S.Manu, the learned counsel for the first

respondent/accused on the other hand contended that the trial court had

considered all the relevant aspects of the matter and had acquitted the

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accused, which judgment does not warrant any interference. It was also

submitted that the complainant had failed to adduce any evidence to

prove either the execution of the cheque or the existence of any debt or

liability and in the absence of the crucial ingredients of the offence under

section 138 of the NI Act, the acquittal of the accused was legally

proper.

6. I have considered the rival submissions and have perused the

trial court records.

7. The accused is alleged to have issued a cheque dated

16.04.2009 in satisfaction of the amount allegedly borrowed by him. The

cheque was presented for encashment, as evident from Ext.P2 and it

was dishonoured on 09.07.2009, as is revealed from Ext.P3. Ext.P4

Advocate notice was issued on 14.07.2009, which was received by the

accused on 15.07.2009. However, the accused failed to send any reply

notice, compelling the complainant to lodge the complaint. The evidence

of PW1 itself is sufficient to prove that the accused had instituted the

complaint under section 138 of the NI Act, after complying with the

statutory formalities.

8. In the proof affidavit filed by the complainant, he had

specifically stated that the accused borrowed the amount on 15.03.2009

and a post-dated cheque dated 16.04.2009 was issued to him, which

was even witnessed by a person named Sathyaprakash, who was

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examined as PW2. The complainant had also stated in his deposition that

the accused came to his house in the morning of 15.03.2009 and

requested for the amount, which the complainant had promised to give

him earlier. In his cross-examination, he deposed that PW2

Satyaprakash was present in the house when the accused came and that

the money was given at 1 pm on 15.03.2009. It was also deposed that

the accused had handed over a cheque brought by him after signing it in

front of the complainant, when the money was handed over. PW2, who

was stated to be the person who witnessed the handing over of the loan

amount and corresponding handing over of the cheque, deposed that he

had gone to the house of the complainant in the morning and that he

witnesses the accused collecting the loan and even signing and handing

over the cheque to the complainant. DW1 is the wife of the complainant.

She deposed that the accused had borrowed money from her husband

for repayment without interest and a cheque bearing a date after a

month was issued to her husband.

9. The trial court came to the conclusion that the complainant had

not proved the execution of Ext.P1 cheque on the basis of minor

inconsistencies in the evidence of PW1 and PW2, apart from that of DW1.

In the proof affidavit of PW1, it is stated that the amount was borrowed

at 9.00 am of 15.03.2009, while in his cross-examination, he deposed

that the amount was handed over at 1 pm on the same day. Though

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there is some inconsistency in the deposition of PW1 as regards the time

when the amount was handed over to the accused, the same is not

significant as the evidence adduced by the complainant clearly proves

that the accused had borrowed an amount of Rs.3,00,000/- on

15.03.2009 and issued a post-dated cheque. Both witnesses PW1 and

PW2 are categorical that the amount was handed over in the presence of

PW2. Even as regards the inconsistency, it needs to be observed that,

what was stated by PW1 in the proof affidavit was that the accused went

to his house in the morning and requested for some advance amount

and that when the amount was handed over, PW2 was present in his

house. During the cross-examination, PW1 admitted that the amount

was handed over at 1.00 pm. Even if it is assumed that there is some

inconsistency, it is only minor as the consistent case of the complainant

was that the money was handed over on 15.03.2009.

10. On a perusal of the evidence adduced by the complainant, it is

evident that the complainant had categorically asserted that the accused

had borrowed an amount of Rs.3,00,000/- on 15.03.2009 and issued a

post dated cheque dated 16.04.2009. The cross-examination of the

complainant has not elicited any answers contrary to the prosecution

case. On the other hand, it has come out in evidence that the accused

had, on an earlier occasion also, borrowed a certain sum of money from

the complainant. The trial court had misinterpreted the evidence of DW1

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regarding the handing over of the cheque. When DW2 stated that the

accused had issued a cheque dated after a month, the court assumed

that it was issued after a month.

11. In this context, it is worthwhile to mention that the

presumption under section 139 of the NI Act though rebuttable, the

accused has a burden to adduce appropriate evidence either in the form

of cross-examination of the complainant's witness or through other

evidence produced and marked during trial. In order to rebut the

presumption, the accused has to raise a probable defence - a defence which is

believable and the existence of which cannot be doubted. The mode of

rebutting the presumption must start from the earliest stage itself, so as to

enable the Court to believe in the probability of the defence. The absence of a

reply notice in the instant case stares at the face of the accused, as he had

not, when given the first opportunity to respond, failed to issue any reply

notice.

12. In this context, it is worthwhile to refer to the decision in Sanjabij

Tari vs. Kishore S. Borcar and Another [2025 SCC Online SC 2069],

wherein the Supreme court had deprecated the practice of the Courts not

giving effect to the presumption under Sections 118 and 139 of the NI Act. In

the said decision, the Supreme Court had, in fact, observed that the fact that

the accused failed to reply to the statutory notice under Section 138 of the NI

Act leads to an inference that there is merit in the complainant's version.

13. The above principle of law clearly apply in the instant case, and the

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Trial Court had adopted an erroneous approach while coming to the conclusion

that the presumption under Section 139 of the NI Act stood rebutted. In the

absence of any material, the presumption cannot be said to have been

rebutted.

14. Moreover, in Rajesh Jain v. Ajay Singh [(2023) 10 SCC 148]

it has been observed as follows:

"40. 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 prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist.

41. 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 section 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

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justifying a finding that there was 'no debt / liability'.

42. 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.

43. 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."

15. As observed in the above mentioned decision, the standard of

proof for rebutting a presumption is that of preponderance of probability

and it is always open to the accused to rely on the evidence laid by him

or that of the complainant, to raise a probable defence. The burden on

an accused to rebut the presumption under section 139 of the NI Act

though not as heavy and onerous, as the initial paramount burden is on

the prosecution to prove its case beyond reasonable doubt, still, it is not

sufficient if vague or imaginative doubts are raised. No doubt, inference

of preponderance of probabilities can be drawn not only from the

materials brought on record by the parties but also by a reference to the

circumstances upon which they rely. Reference to the decision in

Rajaram v. Maruthajalam [2023 INSC 51] is also relevant in this