Kerala High Court

Pramod Kumar vs Seetha Baiju on 14 July, 2025

                                          2025:KER:51543

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
 MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
                 CRL.A NO. 535 OF 2014


      AGAINST THE ORDER/JUDGMENT DATED 26.03.2014 IN
Crl.A NO.492 OF 2013 OF DISTRICT & SESSIONS COURT/RENT
CONTROL APPELLATE AUTHORITY, ALAPPUZHA ARISING OUT OF
THE ORDER/JUDGMENT DATED 31.10.2013 IN CC NO.294 OF
2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS , RAMANKARI

APPELLANT/1ST RESPONDENT/COMPLAINANT:

           PRAMOD KUMAR, EZHUPATHILCHIRA, KAVALAM P.O.,
           ALAPPUZHA DISTRICT.

           BY ADVS. 
           SRI.S.SANAL KUMAR (SR.)
           SMT.BHAVANA VELAYUDHAN
           SMT.T.J.SEEMA

RESPONDENTS/APPELLANT &2ND RESPONDET/ACCUSED & STATE:

    1      SEETHA BAIJU, BINDU BHAVAN, PUNNAKUNNAM P.O.,
           PULINCUNNU,ALAPPUZHA - 688 504.

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

           BY SMT. MAYA M.N., PUBLIC PROSECUTOR


      THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
 ON 11.07.2025, THE COURT ON 14.07.2025 DELIVERED THE
 FOLLOWING:
   Crl.A..No.535/2014       :2:                2025:KER:51543



                                  JUDGMENT

This appeal has been preferred by the complainant in C.C.

No.294/2011 on the file of the Judicial First Class Magistrate

Court, Ramankary. 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 she was convicted and sentenced to undergo

simple imprisonment for a period of three months and to pay

Rs.1,00,000/- as compensation under Section 357(3) of Cr.P.C.

2. However, subsequently, the accused preferred an appeal.

The learned Sessions Judge, Alappuzha, vide judgment dated

26.03.2014 in Crl. Appeal No.492/2013, 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 hereinafter be referred

to as the complainant and the accused for clarity.

3. The case of the complainant in brief is as follows;

The accused and the complainant are known to each other. Crl.A..No.535/2014 :3: 2025:KER:51543

The accused borrowed an amount of Rs.1,00,000/- from the

complainant. Towards the discharge of the said liability, the

accused issued a cheque for Rs.1,00,000/- dated 15.10.2011

drawn on the account maintained by him with Alappuzha District

Co-operative Bank, Pulinkunnu branch, in favour of the

complainant. At the time of issuing the cheque, the accused

assured the complainant that there would be sufficient funds in

his account as and when the cheque is presented for

encashment. However, when the complainant presented the said

cheque for collection through his account maintained at

Alappuzha District Co-operative Bank, Kavalam branch, the same

was returned dishonored, 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. Consequently, the accused is alleged to have

committed an offence punishable under Section 138 of N.I. Act.

4. Before the trial court, the complainant was examined Crl.A..No.535/2014 :4: 2025:KER:51543

as PW1 and marked Exts. P1 to P6. After consideration of the

oral and documentary evidence on record, and after hearing both

sides, the trial court found the accused guilty of the offence

punishable under Section 138 of N.I. Act, and accordingly

convicted her. Assailing the said judgment, the accused

approached the Sessions Court, Alappuzha, in appeal. The

learned Sessions Judge, Alappuzha, vide judgment dated

26.03.2014 in Crl.Appeal No.492/2013, allowed the appeal and

found the accused not guilty of the offence under Section 138 of

N.I. Act, and she was acquitted. Assailing the said finding and

the order of acquittal, the complainant has preferred this appeal.

5. I heard Sri.S. Sanal Kumar, the learned counsel

appearing for the appellant, and Smt. Maya M.N., 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. According to the counsel, since the execution of the

cheque stood fully established, the complainant had successfully Crl.A..No.535/2014 :5: 2025:KER:51543

laid the foundation for drawing a presumption under Section 139

of N.I. Act. However, the Sessions Court acquitted the accused

without taking note of the fact that the accused miserably failed

to discharge the said presumption. It was also contended that

the finding of the Sessions Judge that the complainant failed to

prove the source of the amount allegedly lent by him will not be

sustained. According to the counsel, the Sessions Court blindly

believed the defence version that Ext.P1 was a cheque leaf

issued in connection with a chitty transaction without any

credible evidence.

7. The specific case of the complainant is that out of the

acquaintance which he had with the accused, he lent an amount

of Rs.1,00,000/- to the accused. Towards the repayment of the

said amount, the accused issued a cheque which upon

presentation for encashment returned unpaid due to insufficient

funds in the account of the accused. According to the

complainant, the statutory notice issued by him also went in vain

as the accused did not repay the amount. In order to prove his

case, the complainant got himself examined as PW1. He filed an Crl.A..No.535/2014 :6: 2025:KER:51543

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. At this juncture, it is pertinent to note

that the learned Sessions Court gave undue importance to the

evidence of PW1 that he did not see the appellant writing the

amount in Ext.P1 cheque. However, through a series of judicial

pronouncements, it is now well settled that there is no legal

requirement that the drawer of a cheque must personally write

all the entries in a cheque for prosecuting him for an offence

under Section 138 of N.I. Act. The Hon'ble Apex Court in Bir

Singh v. Mukesh Kumar [2019 (9) SCC 197]: 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 Crl.A..No.535/2014 :7: 2025:KER:51543

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 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 Crl.A..No.535/2014 :8: 2025:KER:51543

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. 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 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.

8. 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 Crl.A..No.535/2014 :9: 2025:KER:51543

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 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.

9. Therefore, I have no hesitation in holding the fact that

the evidence of PW1 to the effect that he did not witness the Crl.A..No.535/2014 :10: 2025:KER:51543

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 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 Crl.A..No.535/2014 :11: 2025:KER:51543

execution of the said negotiable instrument is either proved or

admitted. This Court in P.G. Joshy v. Jose Varghese [2019

SCC online KER 2965] held that a person who signs a cheque and

makes it over to the payee remains liable under Section 138 of

the Act unless he adduces evidence to rebut the presumption

that the cheque was issued for payment of a debt or in discharge

of a liability. It is immaterial that the cheque was filled by any

person other than the drawer if the cheque is duly signed by the

drawer.

10. 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 in his

favour.

11. While considering whether the said presumption stands

rebutted, it becomes necessary to examine defence version of

the incident. The case of the accused is that she had only a daily Crl.A..No.535/2014 :12: 2025:KER:51543

chitty transaction with the complainant, and Ext.P1 cheque was

issued as a security in connection with the said chitty transaction.

Apart from raising such a plea, no convincing evidence

whatsoever has been produced from the side of the accused to

prove the case canvassed from her side. She even opted not to

enter the witness box to depose about the chitty transaction. It

is true that during cross-examination, the complainant was

confronted with a daily chitty diary and questions were posed to

him suggesting the existence of such a transaction.

Nevertheless, PW1 stoutly denied such a transaction and

asserted that the entries in the said diary had no connection with

him and the said entries were not in his handwriting. More

pertinently, the said diary used to confront PW1 was not even

marked in evidence in this case. Therefore, I am of the

considered view that the case canvassed by the defence is

unbelievable and the same is not sufficient to rebut the

presumption available in favour of the complainant under Section

139 of the N.I. Act.

Crl.A..No.535/2014 :13: 2025:KER:51543

12. Another ground on which the Sessions Judge relied to

acquit the accused is that PW1 failed to adduce the source of the

amount which he allegedly lent to the accused. However, once

the execution of a cheque is proved, the complainant has no

onus to establish or prove the source of the amount which he

had lent to the accused. In Rohit Bai, Jeevan lal Pattel v.

State of Gujarat and others [(2019) 18 SCC 106], the Hon'ble

Supreme Court held that the complainant has no onus to prove

the financial capacity at the threshold. In paragraph 18 of the

said judgment, the Hon'ble Supreme Court observed as follows:

"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act the trial cout proceeded to question the want of evidence on the part of the complainant as regards the souce of the funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused. The aspect relevant for consideration had been as to whether the appellant-accused has brought on record such facts/material/circumstances which could be of a reasonably probable defence."

Crl.A..No.535/2014 :14: 2025:KER:51543

13. As I have already discussed, in the present case, the

evidence adduced from the side of the complainant is sufficient

to establish the transaction 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. Since the

said presumption stands not displaced in this case, 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 Sessions

Court acquitting the accused deserves interference.

14. In the result, this appeal stands allowed. The judgment