Kerala High Court
Vishnu Prasad vs Gracy Yohannan on 4 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
CRL.A NO. 1216 OF 2013
AGAINST THE JUDGMENT DATED 17.06.2013 IN CRL.A NO.94 OF 2012 OF THE II
ADDITIONAL SESSIONS JUDGE, KOLLAM
APPELLANT/PETITIONER:
VISHNU PRASAD
S/O. SANTHAKUMARI, ABIRAMI ILLAM, VILAKKUPARA P.O.,
AYIRANALLUR VILLAGE, KOLLAM DISTRICT.
BY ADV SHRI.B.MOHANLAL
RESPONDENTS/ACCUSED & STATE:
1 GRACY YOHANNAN
THENGUMTHOTTATHIL VEEDU, CHANDANAKAVU, THINGALKARIKKAM
VILLAGE, KULATHUPUZHA P.O., KOLLAM.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV SRI.S.M.ALTHAF
PP - ADV SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2025, THE
COURT ON 04.06.2025 DELIVERED THE FOLLOWING:
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Crl.A. No. 1216 of 2013
2
"C.R"
JUDGMENT
Dated this the 4th day of June, 2025
This appeal has been filed under Section 378(4) of
the Code of Criminal Procedure, 1973, with the leave of this
Court, challenging the judgment of acquittal rendered by the
learned Additional Sessions Judge-II, Kollam in Crl. Appeal
No.94 of 2012 dated 17.06.2013, after setting aside the
judgment of conviction for the offence under Section 138 of
the Negotiable Instruments Act, 1881 [hereinafter referred as
'NI Act' for short] imposed by the Judicial First Class Magistrate
Court-IV, Punalur in C.C. No.103 of 2009 dated 20.03.2012.
The appellant herein is the complainant and the 1 st
respondents is the accused in C.C. No.103/2009. The 2 nd
respondent herein is the State of Kerala.
2. Heard the learned counsel for the appellant, the
learned Public Prosecutor and the learned counsel appearing
for the 1st respondent, in detail. Perused the verdict under
challenge and the records of the trial court.
3. Parties in this appeal shall be referred as
'complainant' and 'accused' hereafter.
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4. The case of the complainant is that, the accused
borrowed Rs.3 Lakh from him on 19.08.2008 and promised to
repay the same on 19.09.2008. Accordingly, the accused
issued cheque for the said sum dated 19.09.2008 drawn on
State Bank of Travancore, Kulathuppuzha Branch. When the
cheque was presented for collection, the same got
dishonored for want of funds. Although, legal notice was
issued to the accused intimating dishonor and demanding
payment of the cheque amount, she failed to pay the
amount.
5. The trial court took cognizance for the offence
punishable under Section 138 of the NI Act and proceeded
with trial. PW1 was examined and Exts.P1 to P7 were marked
on the side of the complainant. After examination of the
accused under Section 313(1)(b) of Cr.P.C, DW1 was
examined on the side of the accused.
6. On appreciation of evidence, the trial court found
that the accused committed the offence punishable under
Section 138 of the NI Act. Accordingly, she was sentenced to
undergo simple imprisonment for a period of three months
and to pay compensation to the tune of Rs.3,25,000/-. In
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default, the accused was sentenced to undergo simple
imprisonment for three months more. But on appeal, the
Appellate Court reversed the said finding and acquitted the
accused. Now, the finding of the Appellate Court is under
challenge.
7. While assailing the judgment of acquittal rendered
by the first Appellate Court, it is argued by the learned
counsel for the appellant/complainant that, the complainant
himself got examined as PW1 and he deposed about the
transaction, which led to execution of Ext.P1 cheque.
According to the learned counsel for the
appellant/complainant regarding the source of money to
advance Rs.3 Lakh to the accused, during cross-examination,
the complainant deposed that he sold properties belonged to
him during the year 2007 and 2008, though he failed to
remember the name of the purchaser/vendee. It is pointed
out that, however, one Rahim, who is the purchaser of the
properties from PW1 was summoned and examined by the
accused as part of defence evidence as DW1 and he
supported the purchase of properties from the complainant,
having an extent of 55 cents and 88 cents, supporting the
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version of PW1. Therefore, the trial court rightly appreciated
the evidence and entered into conviction. But, the Appellate
Court wrongly re-appreciated evidence, mainly on the
premise that the complainant was not aware as to who filled
up the cheque; whether it was by the accused or anybody
under his instructions. It is pointed out by the learned
counsel for the appellant/complainant that the reasoning
given by the Appellate Court to set aside the trial court
judgment is insufficient and erroneous. Therefore, the same
may be set aside and the trial court judgment may be
restored.
8. The learned counsel for the appellant/complainant
placed decision of the Apex Court reported in [2024 5
Supreme 235 : 2024 0 Supreme (SC) 521 : 2024 0 KLT
(OnLine) 1279] K. Ramesh v. K. Kothandaraman ,
wherein the Apex Court held as under:
When once negotiable instrument has been
marked in evidence, presumption regarding its
validity would arise and it is for accused to
displace the presumption - Even if a blank
cheque leaf is voluntarily signed and handed
over by accused towards some payment would
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attract presumption under Section 139 of Act
and in absence of any cogent evidence to show
that cheque was not issued in discharge of debt,
presumption would hold good - Forensic opinion
was wholly unnecessary in instant case
Application filed by accused before Trial Court
was wholly frivolous and Trial Court had rightly
rejected application - High Court ought not to
have allowed revision application - Impugned
order set aside.
9. In K. Ramesh's case (supra) the Apex court
referred the decision reported in [(2019) 4 SCC 197] Bir
Singh v. Mukesh Kumar, with reference to paragraph
Nos.32, 33, 34 and 36. The same read as under:
"32. 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.
33. A meaningful reading of the
provisions of the Negotiable Instruments Act
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including, in particular, Sections 20, 87 and
139, makes it 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.
34. 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.
36. 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."
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10. Repelling the contentions raised by the learned
counsel for the complainant, the learned counsel for the
accused argued that, on reading the evidence given by PW1
extracted during cross-examination, the entire evidence is
filled with improbabilities. According to him, even though
PW1 deposed that he sold properties during the year 2007
and 2008 to justify the source to advance the money to the
accused, he was unable to remember the name of the
purchaser/vendee. That apart, when he was asked to explain
the circumstances under which the cheque amount was
given to the accused, he failed to give a rational answer and
he had given answer that the same was known to the
accused. According to the learned counsel for the accused,
as admitted by PW1 and as contended by the accused, there
was gold loan dealings in between the complainant and
accused and for which, Ext.P1 cheque was issued as security
and the same has been misused for the purpose of lodging
the complaint against the accused. Therefore, after setting
aside the judgment rendered by the trial court, the Appellate
Court rightly recorded acquittal and the same does not
require any interference.
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11. In view of the rival submissions, the questions
arise for consideration are:
1. Whether the first Appellate Court went
wrong in holding that the case of the complainant
as to issuance of Ext.P1 cheque for the transaction
of Rs.3 Lakh was not proved by the complainant?
2. Whether the first Appellate Court wrongly
set aside the judgment of conviction and sentence
imposed by the trial court?
3. Whether the verdict impugned would
require interference?
4. Orders to be passed?
12. The law is well settled that, an initial burden is
cast upon the complainant to prove the transaction led to
execution of the cheque, so as to canvas benefit of
presumptions under Sections 118 and 139 of the NI Act.
13. In the instant case, the trial court found on
evidence that the complainant proved the transaction and
execution of the cheque and the presumptions in favour of
the complainant was not rebutted by the accused. Therefore,
the accused was convicted and sentenced by the trial court.
But, the first Appellate Court, on reappreciation of evidence,
found otherwise. It was observed by the first Appellate Court,
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relying on the evidence of DW1 during cross-examination
that, the complainant had no explanation as to who filled up
Ext.P1 cheque, since he admitted in cross-examination that
he did not know who filled up the cheque. Further, he
deposed that he did not know whether Ext.P1 cheque
contains the handwriting of the accused or not. Regarding
the entries, the evidence of PW1 to the effect that the
accused might have brought the cheque after filling it up,
was also referred by the trial court. The Appellate Court is of
the view that a blank cheque leaf entrusted by the accused
was misused by the complainant, accepting the case
advanced by the accused and the Appellate Court believed
the said version. Thereby, reversed the acquittal, finding
fault with the evidence of PW1 regarding transaction and
execution of Ext.P1 cheque.
14. Coming to the evidence of PW1, who filed chief
affidavit, he deposed about borrowing of Rs.3 Lakh by the
accused on 19.08.2008 and issuance of cheque dated
19.09.2008 drawn on State Bank of Travancore,
Kulathuppuzha Branch. Further, he deposed about
presentation of Ext.P1 cheque for cash, dishonor, issuance of
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legal notice of demand and reluctance on the part of the
accused to repay the same. It was through him, Ext.P1 the
original cheque along with Ext.P2 dishonor memo, Ext.P3
intimation, Ext.P4 copy of lawyer notice, Ext.P5 postal
receipt, Ext.P6 returned lawyer's notice and Ext.P7
statement of account of the complainant were marked. It is
true that, during cross-examination of PW1, when a question
was asked regarding his employment, he stated that he has
been working as a Poojari in temples for 20 years and he
would get Rs.300/- per day as wage. But as regards to the
source to advance the cheque amount to the accused, his
version is that, he sold 2.5 Acres of properties for a total
consideration of Rs.18 Lakh (Rs.10.5 Lakh + 7.5 Lakh) and
the amount given to the accused was so obtained by him.
During further cross-examination, PW1 admitted that the
money was not withdrawn from the bank and he also failed
to name the vendor to whom he sold the properties. He also
admitted during further cross-examination that, there were
gold loan deals in between him and the accused earlier,
though no such deals on the date of giving evidence. Even
though, the name of the vendee, who purchased the
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properties was not disclosed by PW1 during his cross-
examination, at the instance of the accused one Rahim got
examined as DW1 by issuing summons. During chief
examination, DW1 admitted that he purchased properties
from PW1 though he did not exactly remember the year of
purchase. But, he stated that the sale was four years ago
and his date of examination was on 01.12.2011. DW1 also
deposed during examination that, he purchased 55 cents
and 88 cents of property from PW1 and sold 88 cents of
property for Rs.10.5 Lakh thereafter. But, regarding the
details of the agreement for sale and the date of said
agreement, he did not have much memory.
15. The trial court given emphasis to the evidence of
PW1 regarding the source as spoken by him, which is
supported by the evidence of DW1. It is true that the
documents pertaining to property sale were not produced by
either side. But, on perusal of Ext.P7 statement of account in
the name of the complainant, the same would show that,
there was deposit of Rs.9,50,000/- (Rs.6,50,000/- +
Rs.3,00,000/-) as on 11.07.2007 in the account of the
complainant, though on 08.07.2008, the balance was only
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Rs.4,476/-. Thus, from Ext.P7, it could be seen that there was
deposit of Rs.9,50,000/- (Rs.6,50,000/- + Rs.3,00,000/-) in
the account of the complainant and the same was
periodically withdrawn. Here, the case of the complainant
initially is that, he had given Rs.3 Lakh to the accused and
the money was obtained by him by selling his properties,
later, during his further cross-examination, he admitted that
the money given to the accused was not withdrawn from the
bank. But, his version as to sale of properties, is supported
by the evidence of DW1, who is a witness from the side of
the accused. Further, availability of Rs.9,50,000/- on
11.07.2007 in the account of the complainant could be
gathered from Ext.P7.
16. The Appellate Court given emphasis to the
decisions of this court in Santhi v. Mary Sherly reported in
[2011 (3) KLT 273 : 2013 (1) KLT 157] and Jose v. Joy
reported in [2008 (3) KLT 512] to hold that the transaction
and execution of the cheque as contended by the
complainant were not proved and the reasoning rendered by
the trial court holding contra view was wrong.
17. In a prosecution alleging commission of offence
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under Section 138 of the NI Act, the complainant has an
initial burden to prove the transaction, which led to
execution of the cheque alleged to be issued by the accused
in his favour. As part of the same, when the source of money
to advance the cheque amount is put under challenge, the
complainant is expected to give a rational explanation,
though no statutory duty cast upon the complainant to prove
the source voluntarily, when there is no dispute regarding
source.
18. In the instant case, source of money of the
complainant to advance Rs.3,00,000/- to the accused, as
contended by the complainant was seriously put under
challenge. During cross-examination, PW1 deposed about
the source on asserting that he sold properties during the
year 2007 and 2008. It is true that PW1 did not produce any
documents to substantiate sale of properties as stated by
him. He also failed to remember the name of the
purchaser/vendee. The evidence of PW1, who did not know
even the name of the vendee/purchaser and who did not
produce documents showing property sale, alone would not
be sufficient to believe the complainant's version that he
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sold properties and out of the said money Rs.3,00,000/- was
given to the accused. However, in the instant case, the
accused who presumably knew the property sale, summoned
and examined the vendee, who pruchased the properties of
the complainant, as a defence witness to negate the
evidence of PW1 regarding the sale of properties, as stated
by him. But, the evidence of DW1, in fact, supported
purchase of property from the complainant. When the
witness produced by the defence itself supported sale of
properties as spoken by PW1, who had no inclination to the
complainant, the evidence of PW1 that he sold properties
and out of the said amount, the money was given to the
accused, is proved as admitted by DW1.
19. That apart, Ext.P7 would show that, during the
month of July, 2007, the complainant had bank deposit of
Rs.9,50,000/-. PW1's evidence is that the amount was not
taken immediately from the Bank. Thus, it could not be held
that the complainant failed to prove the transaction led to
execution of Ext.P1 cheque, merely for the reason that he
did not know, who filled up the cheque and the handwriting
in Ext.P1 cheque, as found by the first Appellate Court.
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20. In this case, issuance of Ext.P1 cheque is admitted
by the accused, but as security towards gold loan dealings
between the complainant and the accused. In such a case,
the finding of the trial court is only to be confirmed, while
holding that the first Appellate Court went wrong in reversing
the same.
21. Summarizing the discussion, it is held that the
verdict rendered by the first Appellate Court acquitting the
accused on the finding that she did not commit the offence
punishable under Section 138 of the NI Act is wrong and the
same deserves interference.
22. In the result, the appeal stands allowed and the
judgment of the first Appellate Court stands set aside. The
judgment of the trial court stands restored and the accused
is convicted for the offence punishable under Section 138 of
the NI Act and she is sentenced to undergo simple
imprisonment for a period of one day till rising of the Court
and to pay fine of Rs.3,50,000/- (Rupees Three Lakh Fifty
Thousand Only). Fine shall be given as compensation to the
complainant under Section 357(1)(b) of Cr.P.C. In default of
payment of fine, the accused shall undergo default
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imprisonment for a period of six months. The accused is
directed to surrender before the trial court to undergo the
modified sentence positively at 11.00 a.m. on 01.07.2025
and on failure to do so, the trial court is directed to execute
the modified sentence imposed by this Court, without fail.
Registry is directed to forward a copy of this judgment
to the trial court for information and compliance, within
seven days.
Sd/-
A. BADHARUDEEN
SK
JUDGE
