Kerala High Court
Victor Cletus vs State Of Kerala on 8 July, 2025
2025:KER:49806
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.A(V) NO. 1673 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 30.10.2013 IN CRL.A
NO.503 OF 2010 OF ADDITIONAL DISTRICT COURT- I, KOLLAM
ARISING OUT OF THE ORDER/JUDGMENT DATED IN ST NO.157 OF
2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, KOLLAM
PETITIONER/2ND RESPONDENT/COMPLAINANT:
VICTOR CLETUS, AGED 50 YEARS
VIJO VILASAM, THEKKEMURI,
KIZHAKKE KALLADA, KOLLAM
BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL
RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM. 682 031.
2 NAVAS, AGED 45 YEARS
PUNNAVILAPUTHEN VEEDU (THUNDIL VEEDU),
PALLISSERIKKAL PO, SASTHAMCOTTAH, KOLLAM 691 001
BY ADVS.
SRI.ABDUL JAWAD K.
SRI.MATHEW A KUZHALANADAN
SMT.VINEETHA V.KUMAR
SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN COME
UP FOR HEARING ON 04.07.2025, THE COURT ON 08.07.2025
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal has been preferred by the complainant in
S.T.No.157 of 2009 on the file of the Judicial First Class Magistrate
Court-IV, Kollam. 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 one month and to pay a fine of
Rs.1,00,000/-. However, subsequently, after considering the appeal
preferred by the accused, the learned Additional Sessions Judge,
Kollam, vide order dated 30.10.2013, 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. The parties in this appeal shall be referred to as
the complainant and the accused hereafter.
2. The case of the complainant in brief is as follows;
On 09.08.2006, the accused borrowed an amount of
Rs.1,00,000/- from the complainant and towards the discharge of
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the said liability, issued a cheque dated 04.01.2007 drawn on the
account maintained by him with the State Bank of Travancore,
Sasthamcotta branch, in favour of the complainant. When the
complainant presented the said cheque for collection on
04.01.2007, through the account maintained by him with the State
Bank of Travancore, Kizhakke Kallada branch, the same was
returned dishonored, stating the reason 'funds insufficient'.
Thereafter, the complainant issued a notice to the accused
intimating the factum of dishonor of the cheque and demanding the
payment of the cheque amount. Though the said notice was duly
served, the accused neither made the payment nor issued any
reply. Hence, the accused is alleged to have committed an offence
punishable under Section 138 of N.I. Act.
3. Before the trial court, the complainant was examined as
PW1 and marked Exts. P1 to P6. Apart from the complainant,
another witness was examined as PW2. From the side of the
accused, he was got himself examined as DW1 and marked Exts.D1
to D3.
4. After consideration of the oral and documentary evidence
on record, and after hearing both sides, the trial court by judgment
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dated 28.10.2010, found the accused guilty of the offence
punishable under Section 138 of N.I. Act, and he was convicted.
Assailing the said judgment, the accused approached the Sessions
Court, Kollam, with an appeal, and the learned Additional Sessions
Judge, Kollam, vide judgment dated 30.10.2013, allowed the said
appeal and found the accused not guilty of an offence punishable
under Section 138 of N.I. Act, and he was accordingly acquitted.
Assailing the said finding and order of acquittal, the complainant
has preferred this appeal.
5. I heard Sri. V.Vinoy Varghese Kallummoottil, the learned
counsel appearing for the appellant, Sri.Abdul Jawab K., the learned
counsel appearing for the 2nd respondent, and Smt.N.S.Hasna Mol,
the learned Public Prosecutor.
6. The learned counsel for the appellant would submit that
the first appellate court hastily acquitted the accused without a
proper appreciation of the facts and evidence brought on record in
this case. It was urged that the trial court had given unnecessary
importance to the fact that the complainant had not seen the
accused writing the amount in his handwriting on Ext.P1 cheque,
despite there being no legal requirement that all the entries in a
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cheque must be filled by the drawer himself. According to the
counsel, as the execution of the cheque stood fully established, the
complainant had successfully laid the foundation for drawing a
presumption under Section 139 of N.I. Act, and the trial court
acquitted the accused without taking note of the fact that the
accused miserably failed to discharge the said presumption. The
learned counsel further submitted that the finding of the Additional
Sessions Judge that the complainant, being an income tax payee,
his case that he paid the amount in cash and not through a bank
account could not be believed, is a strange one. It is further
submitted that the finding of the learned Additional Sessions Judge
that there is evidence to show that Ext.P1 was a cheque leaf issued
in connection with a chitty transaction is wholly contrary to the
evidence on record.
7. Per contra, the learned counsel for the respondent
submitted that the complainant had miserably failed to prove the
transaction alleged in this case. According to the counsel, Ext.P1
cheque is not supported by any consideration and therefore, its
dishonour due to insufficiency of funds does not give rise to a cause
of action to initiate a prosecution under Section 138 of N.I. Act. It
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was further contended that when the complainant was examined as
PW1 and a witness from his side was examined as PW2, both of
them testified that they did not witness the accused entering the
amount in Ext. P1 cheque. This, according to the counsel, clearly
establishes that Ext.P1 was a security cheque issued in connection
with a chitty transaction, which the accused had with the
complainant and later misused by the complainant to file the
complaint.
8. Before delving into a detailed discussion regarding the
scope of interference in the present appeal, it is pertinent to note
that the legal yardsticks applicable to appeals against acquittal and
those against conviction are distinct. Generally, the appellate court
will not interfere with the finding of an acquittal unless it is found
that the only possible conclusion that could have been arrived at
based on the evidence on record is that the accused is guilty of the
offence charged, and the evidence adduced is incompatible with his
innocence. 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 wrong or
perverse and runs contrary to the settled principles of law, and the
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evidence on record clearly establishes the guilt of the accused
leaving no other plausible conclusion, the appellate court is well
within its powers to reverse the finding of acquittal and convict the
accused.
9. Now, while reverting to the case at hand, it can be seen
that in order to prove his case, the complainant got himself
examined as PW1. He filed an affidavit in lieu of chief examination
and reiterated the allegations made in the complaint. During
cross-examination, he asserted that the accused had brought a duly
filled-up cheque and had signed it in his presence. When a definite
question was put to him as to whether the entries in Ext.P1 cheque
were written by the accused, he deposed that he had no
acquaintance with the handwriting of the accused. The independent
witness examined from the side of the complainant also deposed
that he did not see the appellant making entries in Ext.P1 cheque,
but he did witness the accused affixing his signature in Ext.P1. At
this juncture, it is pertinent to note that the learned Additional
Session Court gave undue importance to the evidence of PW1 and
PW2 that both of them did not see the appellant writing the amount
in Ext.P1 cheque. However, by a series of judicial pronouncements,
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it is now well settled that there is no legal requirement that the
drawer himself must write all the entries in a cheque for prosecuting
him for an offence punishable under Section 138 of N.I. Act. The
Hon'ble Apex Court in Bir Singh v. Mukesh Kumar [2019 0
Supreme (SC) 126: 2019 1 KLT 598 : 2019 1 KHC774: 2019 1 KLD
420], where in paragraph Nos. 36 to 40 and 42, summarized the
legal position as regards to the applicability of Sections 20, 87, and
139 of the N.I. Act, after referring the earlier decisions of the Apex
Court reported in [(2013) 1 SCC 177] MSR Leathers v. S.
Palaniappan, [(2008) 14 SCC 457] Southern Sales and
Services v. Sauermilch Design and Handels GMBH, [(2001) 6
SCC 16] Hiten P. Dalal v. Bratindranath Banerjee, [AIR 1958
SC 61] State of Madras v. Vaidyanatha lyer, [(2005) 5 SCC
294] Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra, [(2007) 1 SCC 70] Rajesh Ranjan Yada @Pappu
Yadav v. CBI through its Director, [(2012) 13 SCC 375] Laxmi
Dyechem v. State of Gujarat, [(2001) 8 SCC 458] K.N.Beena v.
Muniyappan, [(2012) 1 SCC 260] R. Vijayan v. Baby, [(2009) 6
SCC 72] Raj Kumar Khurana v. State of (NCT of Delhi),
[(2007) 12 SCC 714] John K. John v. Tom Varghese, [(2008) 4
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SCC 54] Krishna Janardhan Bhat v. Dattatraya G. Hegde and
[(1992) 1 SCC 489] State of Punjab v. Surinder Kumar.
Paragraph Nos. 36 to 40 and 42 are extracted as under:
36. The proposition of law which emerges from the
judgments referred to above is that the onus to rebut
the presumption under Section 139 that the cheque
has been issued in discharge of a debt or liability is on
the accused and the fact that the cheque might be
post dated does not absolve the drawer of a cheque of
the penal consequences of Section 138 of the
Negotiable Instruments Act.
37. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular,
Sections 20, 87 and 139, makes amply clear that a
person who signs a cheque and makes it over to the
payee remains liable unless he adduces evidence to
rebut the presumption that the cheque had been
issued for payment of a debt or in discharge of a
liability. It is immaterial that the cheque may have
been filled in by any person other than the drawer, if
the cheque is duly signed by the drawer. If the cheque
is otherwise valid, the penal provisions of Section 138
would be attracted.
38. If a signed blank cheque is voluntarily
presented to a payee, towards some payment, the
payee may fill up the amount and other particulars.
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This in itself would not invalidate the cheque. The onus
would still be on the accused to prove that the cheque
was not in discharge of a debt or liability by adducing
evidence.
39. It is not the case of the respondent-accused
that he either signed the cheque or parted with it
under any threat or coercion. Nor is it the case of the
respondent-accused that the unfilled signed cheque
had been stolen. The existence of a fiduciary
relationship between the payee of a cheque and its
drawer, would not disentitle the payee to the benefit of
the presumption under Section 139 of the Negotiable
Instruments Act, in the absence of evidence of it
exercise of undue influence or coercion. The second
question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards some
payment, would attract presumption under Section
139 of the Negotiable Instruments Act, in the absence
of any cogent evidence to show that the cheque was
not issued in discharge of a debt.
xxxxx
42. In the absence of any finding that the cheque
in question was not signed by the respondent-accused
or not voluntarily made over to the payee and in the
absence of any evidence with regard to the
circumstances in which a blank signed cheque had
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been given to the appellant-complainant, it may
reasonably be presumed that the cheque was filled in
by the appellant-complainant being the payee in the
presence of the respondent-accused being the drawer,
at his request and/or with his acquiescence. The
subsequent filling in of an unfilled signed cheque is not
an alteration. There was no change in the amount of
the cheque, its date or the name of the payee. The
High Court ought not to have acquitted the
respondent-accused of the charge under Section 138
of the Negotiable Instruments Act.
10. Insofar as the legal position as regards to the issuance
of blank cheque is concerned, the same is well settled as extracted
in Bir Singh's case (supra). Thus, even a blank cheque leaf,
voluntarily signed and handed over by the drawer, which is towards
some payment, would attract presumptions under Sections 118 and
139 of the N.I. Act, in the absence of any cogent evidence to show
that the cheque was not issued in discharge of a debt or legal
liability. The law does not mandate that a cheque shall be in the
handwriting of the drawer. On the contrary, a cheque can be written
by anybody other than a drawer, and the only mandate of law is
that the holder in due course/payee has to prove the transaction
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and execution of the cheque to impose criminal culpability on the
drawer. In view of the above legal position, merely because the
cheque was written by another person, instead the drawer himself,
whether he is capable of writing himself or otherwise, would not
make the cheque invalid or the prosecution case untrustworthy. In
such cases also, when the transaction and execution of the cheque
is proved by evidence, presumptions under Sections 118 and 139 of
the NI Act would squarely apply.
11. Therefore, I have no hesitation in holding that the fact
that the evidence of PW1 and PW2 to the effect that they did not
witness the accused making the entire entries in the cheque leaf is
of little consequence. In the case at hand, even the accused does
not have a case that the signature found in Ext.P1 cheque does not
belong to him. As held in Johnson Zachriah v. State of Kerala
reported in 2006(4) KLT 290, an admission of signature in the
cheque goes a long way in proving the execution, and the
possession of the cheque by the complainant also goes a long way
in proving the issuance of the cheque. In M/s. Kalamani Tex and
another v. P.Balasubramanian reported in 2021 (2) KHC 517,
it has been held by the Hon'ble Supreme Court that, once signature
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on the cheque is established, the obligation shifts to the accused to
discharge the presumption upon him and that the probable defence
raised by him must be established by preponderance of probabilities
and not as a mere possibility. Similarly, in Manesh Varghees v.
Sainulubudeeen and another, reported in 2019 (3) KHC 669,
this Court held that, a presumption will have to be made that a
negotiable instrument was made or drawn for consideration and
that, it was executed for discharge of debt or liability, when once
the execution of the said negotiable instrument is either proved or
admitted. Keeping in mind, the above said propositions of law, while
reverting to the present case, it can be seen that the evidence
given by PW1 and the documents which I have mentioned above
clearly show that, the complainant had succeeded in establishing
the basis for drawing a presumption under Section 139 of the
Negotiable Instruments Act.
12. Now the remaining question to be considered is whether
the accused had succeeded in displacing the presumption which is
available under Section 139 of the N.I. Act in favour of the
complainant. While considering the said question, it is necessary to
have a look into the defence version of the incident. The case of the
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accused is that Ext.P1 is a cheque which he had issued as a security
in connection with a chitty transaction, he had with the
complainant. In order to prove his case, the accused examined one
witness as DW1. DW1 is none other than the brother of the
accused. According to DW1, his brother, the accused in this case,
borrowed an amount of Rs. 85,000/- from the complainant in
connection with a chitty transaction. As per the terms of the said
transaction, his brother had to pay an amount of Rs. 1,000/- per
day to the complainant. DW1 further deposed that Ext.P1 was a
cheque leaf issued by his brother in the said transaction as a
security. Apart from the above oral evidence, two passbooks and
one diary were also produced from the side of the defense and
marked in evidence Exts. D1 to D3 subject to proof. However, a
perusal of Exts.D1 to D3 clearly shows that there is nothing in those
documents to indicate that the said passbook pertains to any chitty
transaction or has any connection with the complainant in the
present case. Neither the name of the complainant nor his
signature or initial appears in the said document. Therefore, I am of
the view that the said feeble and interested evidence of DW1 is
insufficient to displace the presumption available in favour of the
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complainant under Sections 118 and 139 of N.I. Act.
13. One of the reasons assigned by the learned Sessions
Judge for acquitting the accused was that since the accused was an
income tax payee during the period of the alleged transaction, it
was impermissible for him to give an amount of Rs. 1,00,000/- in
cash directly to the accused, but only through bank transaction.
Therefore, the case of the complainant that he lent money to the
accused in cash is not believable. The learned counsel for the
accused also submitted that as the petitioner was an income tax
payee if the petitioner had made a transaction as alleged in the
complainant with the accused, the same would have been reflected
in the income tax return filed by him and the interest accrued on
the amount given to the complainant also should have been
reflected in the return filed. The finding of the trial court, as well as
the contention of the learned counsel for the accused in the above
regard, appear to be rather strange. During examination before the
court, PW1 categorically deposed that he had lent money to the
accused out of his close friendship with him, and it was given not
for charging any interest. Moreover, question such as whether the
complainant lent money in violation of any income tax law or
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whether the complainant disclosed the interest charged from the
accused in the complainant's income tax returns are entirely
irrelevant in the context of this case.
14. In the impugned judgment, the trial court observed that
there was no evidence to show that, before the lending of the
money, the accused had contacted the complainant and the
complainant had agreed to lend the money. In the judgment, it is
also mentioned that in the absence of any evidence regarding the
prior meeting or discussion between the complainant and the
accused, it cannot be said that there was an understanding between
them before the alleged lending of money. This finding also appears
to be unreasonable and unsustainable. PW1 clearly stated that he
had a close acquaintance with the accused and they were thick
friends. Even the accused has not taken a stand that he had no
acquaintance with the complainant or that there was no transaction
between them. Therefore, the absence of specific evidence showing
that the complainant demanded money before the lending of the
same, or that there was a prior meeting of minds, has no
significance at all. A complainant in a 138 matter is not supposed
to tender evidence regarding the date on which the accused
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approached him with a demand for money, particularly when no
questions were asked during cross-examination regarding the date
on which the accused approached the complainant and demanded
money. Therefore, the omission to mention such details in the
evidence is not sufficient to hold that the transaction alleged in this
case is not proven.
15. As I have already stated, in the present case, the evidence
adduced from the side of the complainant is sufficient to prove the
transaction in question and the execution of Ext.P1 cheque by the
accused. Once the transaction and execution are proved, the
statutory presumption under Section 139 of the N.I. Act would
certainly operate in favour of the complainant. However, the said
presumption stands not displaced in this case, and therefore, it is
liable to be held that the accused is guilty of the offence punishable
under Section 138 of N.I. Act. In essence, the judgment of the trial
court acquitting the accused deserves interference.
16. In the result, this appeal stands allowed, and the
judgment of acquittal rendered by the trial court stands set aside.
Consequently, the accused is found guilty of the offence punishable
under Section 138 of the N.I. Act and he is convicted and sentenced
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to undergo simple imprisonment for a period of one day till the
rising of the Court and to pay a fine of Rs.1,50,000/- (Rupees One
Lakh Fifty Thousand Only). Fine shall be given to the complainant
as compensation under Section 357(1)(b) of Cr.P.C. In default of
payment of fine, the accused shall undergo simple imprisonment for
a period of three months. The accused is directed to surrender
before the trial court to undergo the sentence positively on
30.09.2025 at 11.00 a.m. and on failure to do so, the trial court is
directed to execute the sentence imposed by this Court, without
fail.
The Registry is directed to forward a copy of this judgment to the
trial court for information and compliance, within seven days.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
