Kerala High Court
Raju Samuel vs Suja Chacko on 5 June, 2025
Crl.R.P.No.1352 of 2019 1
2025:KER:39884
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
CRL.REV.PET NO. 1352 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 16.07.2019 IN Crl.A NO.104 OF
2016 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL , MAVELIKKARA ARISING OUT OF THE ORDER/JUDGMENT DATED
23.03.2016 IN CC NO.44 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
CHENGANNUR
REVISION PETITIONER/APPELLANT/ACCUSED:
RAJU SAMUEL
AGED 66 YEARS
S/O. LATE SAMUEL, MULAKKITHARAYIL, PERISSERI, CHENGANNUR.
BY ADV SRI.A.SHAFEEK (KAYAMKULAM)
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 SUJA CHACKO
AGED 51 YEARS
W/O. LATE CHACKO GEORGE, NALLOOR MALAYIL VEEDU,
PIRALASSERI, CHENGANNUR - 689121
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 011.
BY ADVS.
SRI.IYPE JOSEPH
SHRI.V.MANOJ KUMAR
MAYA M N - GP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON
29.05.2025, THE COURT ON 05.06.2025 DELIVERED THE FOLLOWING:
Crl.R.P.No.1352 of 2019 2
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M.B.SNEHALATHA, J.
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Crl.R.P.No.1352 of 2019
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Dated this the 5th June, 2025
ORDER
Revision petitioner/accused assails the judgment of
conviction and order of sentence against him for the offence
punishable under Section 138 of the Negotiable Instruments Act,
1881 (for short N.I Act).
2. The parties shall be referred to as complainant and
accused as before the trial court.
3. Complainant laid the complaint alleging that on
15.12.2010 accused borrowed an amount of ₹25 lakhs from him
and in discharge of the said liability, accused issued Ext.P1 cheque
dated 1.3.2011 drawn on Indian Overseas Bank, Chengannur
Branch. Though the complainant presented Ext.P1 cheque for
encashment, it was returned dishonoured due to insufficient funds
in the account of the accused. In spite of receipt of Ext.P5 lawyer
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notice, accused neither sent any reply nor paid any amount
covered by the cheque and thereby committed the offence
punishable under Section 138 of N.I.Act.
4. Accused pleaded not guilty to the accusation and
denied issuance of Ext.P1 cheque in discharge of any debt or
liability.
5. Before the trial court, PW1 and PW2 were examined
and Exts.P1 to P9 were marked on the side of the complainant.
No defence evidence was adduced by the accused.
6. During the pendency of the complaint, the original
complainant died and his wife/1st respondent herein was
impleaded as additional complainant.
7. After trial, the learned Magistrate found the accused
guilty under Section 138 of N.I.Act and he was convicted and
sentenced to undergo simple imprisonment for three months and
to pay a fine of ₹25 lakhs. In default of payment of fine, to
undergo simple imprisonment for three months. It was further
directed that if the fine amount is realised, the whole amount shall
be paid to the additional complainant as compensation under
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Section 357(1)(b) Cr.P.C. Though the accused preferred appeal as
Crl.A No.104/2016, the same was dismissed by the Sessions Court
confirming the conviction and sentence.
8. Challenging the concurrent finding of conviction and
sentence accused has preferred this Revision contending that the
trial court and the appellate court went wrong in appreciating the
evidence in it's correct perspective. It was contended by the
learned counsel for the accused that the complainant failed to
establish that Ext.P1 cheque was issued in discharge of a legally
enforceable debt or liability and therefore, the conviction and
sentence against the accused are liable to be set aside.
9. Per contra, the learned counsel for the complainant
supported the findings of the learned Magistrate and the Sessions
Court and contended that complainant has succeeded in
establishing that the accused borrowed ₹25 lakhs from the
complainant and issued Ext.P1 cheque in discharge of the said
liability.
10. Admittedly, Ext.P1 is a cheque issued from the account
maintained by the accused with Indian Overseas bank,
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Chengannur branch. Accused would also admit his signature in
Ext.P1 cheque. Exts.P2 and P3 memos issued from the Bank
would show that Ext.P1 cheque was dishonoured due to
insufficient funds in the account of the accused.
11. The next aspect for consideration is whether the case of
the complainant that the accused borrowed an amount of ₹25
lakhs from him and issued Ext.P1 cheque in discharge of the said
liability stands proved or not.
12. The original complainant who was examined as PW1
(since deceased) has testified that on 15.12.2010 accused
borrowed an amount of ₹25 lakhs from him and in discharge of
the said liability, accused issued Ext.P1 cheque. Upon
presentation of Ext.P1 cheque for encashment, it was returned
dishonoured due to insufficient funds in the account of the
accused. Exts.P2 and P3 are the memos, issued from the bank.
PW1 has further testified that upon receipt of Exts.P2 and P3
memos, from the Bank he caused to send Ext.P5 lawyer notice to
the accused. Ext.P6 is the postal receipt and Ext.P7 is the
acknowledgment card. According to PW1, inspite of receipt of
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Ext.P5 notice, accused failed to pay the amount covered by Ext.P1
cheque.
13. Accused would admit his signature in Ext.P1 cheque.
He would also admit that he was in acquaintance with the
complainant Chacko George for the last 20 years while they were
working in Qatar. The defence canvassed by the accused is that
while working in Qatar, he was conducting a chitty and the
complainant Chacko George was a subscriber of the said chit. At
the time of starting the chitty, accused had delivered a blank
signed cheque leaf to the complainant as security which was
misused by the complainant. According to him, he has not
borrowed any amount from the complainant as alleged. The
learned counsel for the accused pointed out that the oral
testimony of PW2 and Ext.P4 series documents would show that
Ext.P1 cheque was issued in connection with the chitty
transaction.
14. The complainant, who was examined as PW1 has
categorically denied the suggestion put to him that he was a
subscriber of any chit conducted by the accused. The defence put
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forward by the accused by way of suggestion to PW1 that Ext.P1
signed blank cheque leaf was delivered by him at the time when
the complainant joined in a chit conducted by the accused remains
only as a defence and there is no proof to substantiate the said
defence. There is absolutely no evidence to show that complainant
joined in any chitty conducted by the accused and accused issued
any signed blank cheque to the complainant by way of security as
contended by him.
15. The earned counsel for the accused contended that the
complainant failed to establish that he had sufficient capacity to
lend a huge amount of ₹25 lakhs.
16. It has come out in evidence that complainant was well
employed abroad for quite a long period. Therefore the argument
advanced by the accused that complainant had no financial
capacity is not tenable.
17. Section 118(a) of the N.I Act provides that every
negotiable instrument was made or drawn for consideration, and
that every such instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed, negotiated or
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transferred for consideration. Section 139 of the N.I Act explicitly
provides that unless the contrary is proved, it shall be presumed
that the holder of a cheque received the cheque of the nature
referred to in Section 138 for the discharge, in whole or in part, of
any debt or other liability. A mere creation of doubt is not
sufficient to rebut the presumption under Section 118(a) and 139
of the N.I. Act.
18. In Rohitbhai Jivanlal Patel v. State of Gujarat and
Another [2019 (2) KHC 243] the Hon'ble Supreme Court held that
in view of Section 118(a) and 139 of the N.I. Act, existence of a
legally enforceable debt is to be presumed in favour of the
complainant. When such a presumption is drawn, the factors
relating to the want of documentary evidence in the form of
receipts or accounts or want of evidence as regards source of
funds were not of relevant consideration while examining if the
accused has been able to rebut the presumption or not.
19. In Bir Singh vs. Mukesh Kumar (2019(1) KHC 774) the
Hon'ble Apex Court reiterated that the onus to rebut the
presumption under Section 139 of N.I Act that the cheque has
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been issued in discharge of a debt or liability is on the accused. It
was also held that a meaningful reading of the provisions of
Negotiable Instruments Act include, 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.
20. Accused has not succeeded in rebutting the
presumption under Section 139 of N.I. Act. It is in evidence that
the accused borrowed ₹25 lakhs from the complainant and issued
Ext.P1 cheque to the complainant in discharge of the said liability.
It stands proved that Ext.P1 cheque issued by the accused was
dishonoured due to insufficient funds in his account and in spite of
receipt of Ext.P5 lawyer notice, accused failed to pay the amount
covered by Ext.P1 cheque. Hence, accused has committed the
offence under Section 138 of N.I.Act as rightly held by the trial
court and the appellate court and this Court finds no reason to
unsettle the said findings.
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21. The sentence imposed against the accused is also not
harsh or excessive. Therefore, the conviction and sentence
against the accused for the offence under Section 138 of the NI
Act, do not warrant any interference by this Court. Hence,
revision petition stands dismissed.
The trial court shall take urgent steps to execute the
sentence.
Registry shall transmit the records to the trial court
forthwith.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
