Kerala High Court
Arthar vs Lala Mohanraj & Anr on 23 July, 2025
2025:KER:54650
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
CRL.A NO. 2281 OF 2007
ORDER/JUDGMENT DATED 22.10.2007 IN Crl.L.P.
NO.1090 OF 2007 OF HIGH COURT OF KERALA ARISING OUT OF
THE ORDER/JUDGMENT DATED 13.12.2002 IN CC NO.709 OF
1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-III,NEYYATTINKARA
APPELLANT/COMPLAINANT:
ARTHAR, KATTAKUZHYYVILA ROADARIKATHU VEEDU,
KUNNATHUKAL DESOM,KUNNATHUKAL VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SRI.SUMAN CHAKRAVARTHY
RESPONDENT/ACCUSED AND STATE:
1 LALA MOHANRAJ, S/O. PONNUSWAMY, HOUSE NO.28,
VEDATHA ST.VADASSERRI, NAGARCOIL, KK DISTRICT
NOW RESIDING AT THAYAGAM LANE, NEW HOUSE NO.777
(OLD 171/1) OPPOSITE SUB JAIL, NAGARCOIL-1
2 STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR-R1
SHRI.K.JOHN MATHAI-R1
SRI.JOSON MANAVALAN-R1
SHRI.PAULOSE C. ABRAHAM-R1
SHRI.CHETHAN KRISHNA R.-R1
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SHRI.ALEX M THOMBRA SERNIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 18.07.2025, THE COURT ON 23.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been preferred by the complainant in
C.C.No.709 of 1997 on the file of the Judicial First Class
Magistrate Court-III, Neyyattinkara, challenging the judgment
of acquittal rendered in the said case, dated 13.12.2002,
alleging commission of an offence punishable under Section 138
of the Negotiable Instruments Act (for short "N.I. Act"). For the
sake of convenience and clarity, the parties in this appeal are
hereinafter referred to as the complainant and the accused.
2. The case of the complainant in brief is as follows;
The accused, in discharge of a liability of Rs.3,00,000/-,
issued a cheque dated 03.04.1997 drawn on Federal Bank Ltd.
Nagarcoil branch, in favour of the complainant. However, when
the complainant sent the said cheque for collection through his
account maintained at Federal Bank Ltd., Nagarcoil 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. However, the accused refused
to receive the said notice and did not pay any amount. Thus, the
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accused is alleged to have committed an offence punishable
under Section 138 of the Negotiable Instruments Act, 1881. (for
short "N.I. Act").
3. Before the trial court, the complainant got himself
examined as PW1 AND marked Exts. P1 to P6. Another witness
was examined from the side of the complainant as PW2. On the
side of the defence three witnesses were examined as DW1 to
DW3 and two documents were marked as exhibits D1 and D2.
Among the defence witnesses, DW3 is none other than the
accused himself. After considering the oral and documentary
evidence on record, and hearing both sides, the trial court found
the accused not guilty of the offence punishable under Section
138 of N.I. Act, and accordingly acquitted him. Assailing the said
finding and the order of acquittal, the complainant has preferred
this appeal.
4. I heard the learned counsel appearing for both
sides.
5. 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 trial court correctly appreciated the facts and
evidence brought on record and rightly acquitted the accused.
6. 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.
Ordinarily, an appellate court would not interfere with a judgment
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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.
7. As already stated, the definite case of the complainant
is that the accused owed him an amount of Rs.3,00,000/-, and
towards the discharge of the said liability, the accused issued a
cheque in favour of him for the said amount. However, when the
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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.
During the chief examination, PW1 reiterated the allegations set
forth in the complaint. Notably, as in the complaint during chief
examination also, PW1, did not state any specific details of the
transaction, such as the date on which the amount was
borrowed, the date of issuance of the cheque, place of
transaction, etc. I am not oblivious that there is no legal
requirement mandating the complainant to disclose the entire
details of the transaction either in the complaint or during chief
examination. The non-disclosure of such details is not by itself, a
ground for acquittal.
8. In the case at hand, during chief examination, what PW1
stated is that the accused issued a cheque towards the discharge
of a liability of Rs.3,00,000/- and that it was the accused who
had signed the cheque. Significantly, PW1 does not claim that
the accused signed the cheque in his presence. Anyhow, from
the version put forward by the defence it is discernible that the
accused has admitted the signature in Ext.P1 to be his.
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Therefore, the admission of signature in Ext.P1 substantiates and
supports the complainant's case regarding the execution of the
cheque. Once the execution of the cheque is proved, the
presumption under Section 139 of the N.I. Act will come into
operation in favour of the complainant. Likewise, when the
complainant succeeds in establishing the basis for drawing a
presumption under Section 139 of N.I. Act in his favour, the
burden shifts to the accused to rebut the said presumption.
9. While considering whether the accused had succeeded in
rebutting a presumption under Section 139 of N.I. Act, it is to be
borne in mind 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
improbabilities in the case of the complainant to displace the
presumption. In the present case, the accused has raised a
definite defence that he neither had any acquaintance with the
complainant nor had any monetary transaction with the
complainant. Instead, his case is that in the year 1996, he
borrowed some amount from one Anil Kumar, who was running a
private bank in the name and style "Narikkallil Bankers" at
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Karakonam. The said Anil Kumar was introduced to the accused
by one Sreekumar. However, the accused failed to repay the said
amount to Anil Kumar. Consequently, he issued five cheques to
the said Anil Kumar, each for Rs.3,00,000/-. Even thereafter, he
failed to raise the amount covered by the cheque, and he was
constrained to dispose of his 20 acres of rubber estate. As per
the direction of Anil Kumar, the sale deeds were executed in
favour of Anil Kumar and three others named Krishnan Nair,
Shibu, and Pushpa Kumari. Even after the execution of the sale
deeds in favour of the above-said persons, Anil Kumar did not
return the cheque.
10. In order to substantiate his version, the accused
examined Sreekumar as DW2. On examination before court,
DW2 stated that he and the accused were working in different
branches of the same bank. He knew the complainant in this
case as the latter maintained an account in his branch. The
complainant was introduced to the bank by one Anil Kumar, who
was running a private bank named "Narikkalil Bankers". DW2
further deposed that he had personal acquaintance with Anil
Kumar and the accused had borrowed an amount of
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Rs.6,00,000/- from Anil kumar and the accused issued five
cheque leaves as security. DW2 stood as a middleman in the
said transaction. The said cheque leaves were issued in the
names of five persons as directed by Anil Kumar. The agreed
rate of interest was 60%. As the accused failed to repay the
loan, the accused was constrained to execute sale deeds with
respect to 20 acres of property in the name of Anil Kumar, his
wife Sheeba, his father Krishnan Nair, and his mother-in-law
Pushpa Kumari. However, even after the execution of the sale
deeds, Anil Kumar did not return the cheque leaves.
Consequently, the accused issued legal notice and proceeded to
cancel the sale deeds.
11. While analysing the defence version of the incident, it is
significant to note that during cross-examination, PW1, the
complainant, admitted that he had no acquaintance with the
accused prior to this transaction. He further admitted that the
accused was introduced to him by one Sreekumar(DW2). PW1
also stated that he did not remember the date on which the
money was lent or when the cheque was issued. However, he
stated that the cheque was issued on the same day the money
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was lent. More pertinently, during the cross-examination, PW1
stated that he had given the amount to Sreekumar, who in turn
had given it to the accused. He further admitted that the cheque
was also handed over to him by Sreekumar.
12. At this juncture, it is important to note that during
cross-examination, PW1 admitted that the accused was a
stranger to him. Furthermore, when questions were put to PW1
regarding the source of the amount which he allegedly lent to the
accused, PW1 stated that he had obtained Rs.2,00,000/- from his
brother, who is serving in the Military. He further claimed that
Rs.15,000/- was borrowed from one Sasidharan Nair.
Rs.30,000/- was from his personal savings, and the remaining
amount was raised by pledging his gold ornaments with two
private financiers. Ofcourse, the above version of PW1 regarding
the manner in which he raised the funds to lend to the accused,
who is a complete stranger, raises serious doubts in the mind of
this court. It is difficult to accept, in the ordinary course of
human conduct, that a person would go to such lengths,
borrowing from multiple persons and pledging gold, to lend
money to someone with whom he had no prior acquaintance.
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Therefore, I am of the view that the defence put forward by the
accused cannot be brushed aside. Moreover, the evidence of
DW2 shows that no amount was even given by the complainant
to the accused. According to him, the transaction was between
one Anil Kumar and the accused, and DW2 acted as a middleman
in the said transaction. DW2 further stated that it was at the
direction of the said Anil Kumar, the accused, issued five cheques
in favour of five different persons, including the complainant in
this case. The version of events as narrated by DW2 cannot be
disbelieved, especially in the light of the admissions made by the
complainant during cross-examination, which I have already
discussed.
13. As already noted, this appeal has been filed against an
order of acquittal. An interference in such an order cannot be
done in a casual manner. As there is already an order of
acquittal, a prima facie presumption of innocence is available in
favour of the accused. Interference with an order of acquittal
was warranted only when it is shown that the view taken by the
trial court is perverse, illegal, or grossly unjust. In the present
case, the view taken by the trial court cannot be said to be
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perverse or unreasonable. In that context, I am of the view that
no interference is warranted in the impugned order of acquittal.
In the result, the appeal stands dismissed.
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
