Kerala High Court
N.Natarajan vs Vasudevan on 18 July, 2025
2025:KER:53264
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
CRL.A NO. 1711 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 22.07.2010 IN
Crl.L.P. NO.760 OF 2010 OF THIS COURT ARISING OUT OF
THE ORDER/JUDGMENT DATED 28.05.2010 IN Crl.A NO.347 OF
2009 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, MANJERI
APPELLANT/PETITIONER/COMPLAINANT
N.NATARAJAN
DALIYA, THRIPPANACHI.P.O., KUZHIMANNA,
MALAPPURAM DISTRICT.
BY ADV SRI.K.SHIBILI NAHA
RESPONDENTS/RESPONDENTS/ACCUSED & STATE:
1 VASUDEVAN
PATHAKKARA HOUSE, KOVILAKAM KUNDU, MANJERI.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.P.SAMSUDIN
SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
17.07.2025, THE COURT ON 17.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been preferred by the complainant in
C.C.No.205/2008 on the file of the Chief Judicial Magistrate,
Manjeri. After the trial of the said case, the learned Magistrate
found the accused guilty of the offence punishable under
Section 138 of the Negotiable Instruments Act (for short "N.I.
Act"), and he was convicted and sentenced to undergo simple
imprisonment for a period of six months and to pay a fine of
Rs.1,50,000/-. In default of payment of fine, the accused was
ordered to undergo simple imprisonment for a further period of
three months.
2. However, subsequently, the accused preferred an appeal.
The learned Additional Sessions Judge (Adhoc) Fast Track-II,
Manjeri, vide judgment dated 28.05.2010 in Criminal Appeal
No.347/2009, set aside the judgment passed by the learned
Magistrate and acquitted the accused. Challenging the said
judgment of acquittal rendered in the above-said case, the
complainant approached this Court with the present appeal. For
the sake of convenience and clarity, the parties in this appeal are
hereinafter referred to as the complainant and the accused.
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3. The case of the complainant in brief is as follows;
The complainant is a teacher, and both the complainant
and the accused were acquainted with each other. On
06.06.2007, the accused borrowed an amount of Rs. 1,50,000/-
from the complainant, promising to repay the same within a
period of two weeks. However, the accused failed to repay the
said amount within the promised time. After repeated demands,
on 03.04.2008, the accused came to the house of the
complainant and issued a cheque dated 03.04.2008 for an
amount of Rs. 1,50,000/-drawn on the account maintained by
him with State Bank of Travancore, Manjeri branch, in favour of
the complainant. However, when the complainant sent the said
cheque for collection through his account maintained at South
Malabar Gramin Bank, Trippanachi branch, the same was
returned unpaid, stating the reason 'funds insufficient'.
Thereafter, the complainant issued a notice to the accused
intimating the dishonour of the cheque and demanding the
payment of the cheque amount. Although the said notice was
duly served on the accused, he neither made the payment nor
issued any reply. Thus, the accused is alleged to have committed
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an offence punishable under Section 138 of the Negotiable
Instruments Act, 1881. (for short "N.I. Act").
4. Before the trial court, the complainant got himself
examined as PW1 and marked Exts. P1 to P4. After
consideration of the oral and documentary evidence on record,
and hearing both sides, the trial court found the accused guilty of
the offence punishable under Section 138 of N.I. Act, and
accordingly convicted him. Assailing the said judgment, the
accused approached the Sessions Court, Manjeri, in appeal. The
learned Additional Sessions Judge, Manjeri, vide judgment dated
28.05.2010 in Criminal Appeal No.347/2009, allowed the appeal
and found the accused not guilty of the offence under Section
138 of N.I. Act, and he was acquitted. Assailing the said finding
and the order of acquittal, the complainant has preferred this
appeal.
5. I heard the learned counsel appearing for the
appellant and the learned Senior Public Prosecutor.
6. The learned counsel for the appellant would submit
that the trial court acquitted the accused in a hasty and
unjustified manner without properly appreciating the facts and
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evidence brought on record. According to the counsel, as the
execution of Ext.P1 cheque was duly proved, the trial court ought
to have found that the complainant had succeeded in establishing
the basic facts to draw a presumption under Section 139 of the
N.I. Act. The learned counsel urged that since the accused
miserably failed to rebut the said statutory presumption, he is
liable to be found guilty and convicted. In response, the learned
counsel for the respondent/accused submitted that the
complainant miserably failed to prove his case. According to the
counsel, the complainant failed to discharge his initial burden to
prove the transaction and execution of the cheque, and hence
the presumptions under Sections 118 and 139 of the N.I. Act
cannot be invoked in his favour. According to the learned
counsel, the 1st appellate court correctly appreciated the facts
and evidence brought on record and rightly acquitted the
accused.
7. Before delving into a discussion regarding the scope of
interference in the present appeal, it is pertinent to note that the
legal yardsticks applicable to an appeal against acquittal are
different from those applicable to an appeal against conviction.
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Ordinarily, an appellate court would not interfere with a judgment
of acquittal unless it is demonstrated that the trial court's view is
perverse, manifestly illegal, or grossly unjust, and that the only
possible conclusion on the basis of the evidence on record was
that the accused was guilty of the offence alleged. If two views
are possible on the basis of the evidence, and the trial court has
taken one such view leading to acquittal, the appellate court
would generally refrain from substituting its own view merely
because it might have arrived at a different conclusion. However,
that does not mean that the appellate court cannot reverse an
erroneous acquittal. More specifically, when the appreciation of
evidence by the trial court is patently erroneous or perverse or
runs contrary to the settled principles of law, and when the
evidence on record clearly establishes the guilt of the accused,
leaving no room for any other plausible conclusion, the appellate
court is well within its power to reverse the finding of acquittal
and convict the accused.
8. As already stated, the definite case of the complainant
is that on 06.06.2007, the accused approached the complainant
at his residence and borrowed an amount of Rs.1,50,000/-.
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According to the complainant, after repeated demands for
repayment, the accused, in discharge of the said liability, issued
a cheque on 03.04.2008. However, when the said cheque was
sent for collection, it was dishonoured due to insufficiency of
funds in the account of the accused. In order to prove his case,
the complainant got himself examined as PW1. He filed an
affidavit in lieu of chief examination wherein he reiterated the
allegations set forth in the complaint. In the affidavit, PW1
asserted that it was on 03.04.2008, Ext.P1 cheque was issued.
PW1 further stated that it was in his presence, the accused wrote
his name in the cheque and signed it, and handed over it to him.
A plain reading of the evidence adduced in this case will show
that the complainant had succeeded in establishing the basis for
drawing a presumption under Section 139 of N.I.Act.
9. The crucial question that now arises for consideration is
whether the accused had succeeded in rebutting the said
presumption. While considering the said question, it is to be
noted that there is no legal requirement for the accused to
adduce independent evidence to rebut the said presumption. On
the other hand, the accused can even rely upon the
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improbabilities in the case of the complainant to displace the
presumption. In the present case, the accused has a definite
contention that he had no monetary transaction with the
complainant as alleged in the complaint. Instead, he claimed
that on an earlier occasion, he borrowed an amount of Rs.
20,000/- from the complainant and at that time he had handed
over six signed blank cheque leaves to the complainant without
entering any amount. Thereafter, he repaid Rs.40,000/- to the
complainant by instalments. But he failed to effect the monthly
remaining instalments timely. Hence, on 14.09.2006, he
executed a power of attorney in favour of the complainant with
respect to his 10 cents of property. In the meantime, the
complainant presented one of the cheques at the bank.
Thereafter, the complainant said that the said cheque had been
dishonoured and demanded payment of Rs.10,000/- in cash,
agreeing to return the other cheque leaves and the power of
attorney. Though the accused paid the said amount, the
complainant did not return the other cheque leaves and the
power of attorney. Instead, the complainant insisted to register
the accused's property in the complainant's name. As the
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accused was not ready to heed the said demand, the present
case has been foisted against him.
10. It is true that, though a defence as stated above was
canvassed from the side of the accused, he did not opt to enter
the witness box to substantiate his case. Likewise, no
documentary evidence was also produced to establish the alleged
repayment, execution of power of attorney, etc. However, during
cross-examination, PW1 admitted that the accused had executed
a power of attorney in his favour. He also stated that the said
power of attorney was given within two months from the date on
which he had lent money to the accused. Moreover, he added
that it was on 15.09.2006, the power of attorney was prepared.
Furthermore, in the cross-examination, PW1 stated that as the
accused did not repay the cheque amount, he lodged a complaint
before the Manager of the State Bank of Travancore, Manjeri
branch. He further admitted that the accused issued six cheque
leaves after signing them, and Ext.P1 is one of the said six
cheque leaves issued by the accused. PW1 stated that the
amount in Ext.P1 cheque was written by the accused in his
handwriting.
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11. During cross-examination, PW1 further stated that
when the accused failed to repay the amount, he lodged a
complaint before the Police, and the Sub-Inspector of Police
summoned the accused and directed him to pay the amount on
or before 10.04.2008. Accordingly, on 03.04.2008, the accused
came to his house, entered the amount in one of the cheque
leaves already handed over, and gave the completed cheque to
him. Likewise, in the cross-examination, he reiterated that പ്രതി
എനിക്ക് ആറ് ചെക്ക് ലീവ്സ് ഒപ്പിട്ടു തന്നിരുന്നു (the accused had given me six
signed cheque leaves).
12. However, this version of events directly contradicts the
statement made in his affidavit, filed in lieu of chief examination,
wherein PW1 claimed that on 03.04.2008, the accused came to
his house and issued Ext.P1 cheque after signing it in his
presence. These two versions are mutually contradictory and
cannot stand together. If PW1's version in the cross-examination
that the accused had already handed over six signed blank
cheque leaves is accepted, it becomes highly improbable that the
accused could have signed the cheque again in PW1's presence
on 03.04.2008 as claimed in his affidavit.
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13. Notably, during cross-examination, PW1 further
admitted that the amount involved in the present case was
allegedly given to the accused within two months of the
execution of the power of attorney. Likewise, PW1 admitted that
the power of attorney was prepared on 15.09.2006. At this
juncture, it is pertinent to note that the definite case of the
complainant is that the money was lent on 06.06.2007, well
beyond a two-month period from the execution of the power of
attorney. Therefore, it is demonstrably clear that the testimony
of PW1 that the amount in the present case was allegedly given
within two months of the execution of the power of attorney is
nothing but false.
14. In short, I have no hesitation in holding that the case
canvassed by the accused is more probable than that of the
complainant's case. The complainant does not have a consistent
case regarding the execution of the cheque. It is well settled
that the presumption under Section 139 of the N.I. Act may get
displaced by the prosecution record itself, or the accused may
choose to lead independent evidence in rebuttal thereof. The
presumption can be rebutted either by leading direct evidence or
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by relying upon the inherent improbabilities or inconsistencies in
the complainant's case itself. I am of the considered view that
the inconsistencies in the evidence of PW1 itself will make his
case suspicious. Likewise, the mutually destructive evidence of
PW1 regarding the execution of Ext.P1 cheque will certainly help
the accused to rebut the presumption. Therefore, I find no
reason to interfere with the judgment of acquittal passed in this
case.
In the result, the appeal stands dismissed.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
